Lord Neuberger of Abbotsbury—The Right Honourable Sir David Edmond Neuberger, Knight, a Lord Justice of Appeal, having been appointed a Lord of Appeal in Ordinary and created Baron Neuberger of Abbotsbury, of Abbotsbury in the County of Dorset, for life—Was, in his robes, introduced between the Lord Bingham of Cornhill and the Lady Neuberger.

Lord Davies of Oldham: My Lords, Scotland, has responsibility for its own waterways and, as the noble Earl says, certain advantages. However, it will also be recognised that, in England, substantial parts of our waterways are greatly attractive. One thinks of, for example, the gorge in Shropshire, which is part of the origins of the Industrial Revolution and is, of course, close to a waterway.

Lord Carlile of Berriew: My Lords, the purpose of Amendment No. 8 is to ensure that, before a patient's detention is renewed, the renewal receives the same degree of consideration as the original order. The principle behind this is that the renewal of a detention might—and is often certain to—raise considerations as complex as those which underpin the making of the original order.
	The amendment therefore requires that the process involved in the initial section is duplicated. This is achieved by requiring two medical practitioners to examine the patient before renewal can take place. I have already summarised how the renewal of an order on a patient, after six months or a year, raises the same issues as those in the decision to make the first order.
	When a patient is in the first stages of a very acute crisis that gives rise to the original order, the symptoms the patient shows are often very florid. The diagnosis at that stage may make the initial order rather easier to make than a renewal some time later. When one reaches the stage of a potential renewal, it is very likely that the patient will have undergone some treatment and that their symptoms may therefore be less florid. They may appear, in certain ways, to be irrational. Irrationality, however, is not a qualification for falling into the category of mental disorder, as speeches, at least in another place, often illustrate.
	I therefore suggest that to secure the safety of the patient—who may be in a rather more benign condition and may be at risk of misdiagnosis—the same quality of assessment, by appropriately qualified medical practitioners, is required. I do not begin to understand why the Government say that the examination by two medical practitioners is necessary only at the outset of the compulsory process. From talking to the many experts in this House on the diagnosis of mental disorder and various psychiatric conditions, and to many others involved in the world of psychiatry, I know that diagnosis does not necessarily become easier as the patient's disease progresses.
	The amendment also includes a requirement for examination and certification by two medical practitioners if the renewal is supervised by a health professional other than a medical practitioner. In this context, the 2004 Bill, which the Joint Committee considered, was an improvement on the Mental Health Act 1983, in that a renewal was overseen by the mental health review tribunal, as it was called in that Bill, with access to a panel of experts. Plainly, therefore, when the Government produced the draft Bill that went before the Committee in 2004, Ministers were of the view that verification by a panel of experts for renewals was necessary. With the change from the 2004 draft Bill to the current Bill, that safeguard has been lost. This amendment would provide an alternative safeguard, with a similar requirement for more than one medical opinion. I beg to move.

Baroness Meacher: The Government have rightly upheld the 1983 Act requirement that a detention order, whether made under Section 2 or 3, must be supported by two medical recommendations. On the other hand, as the noble Lord, Lord Carlile, has indicated, the assumption of the renewal clause seems to be that renewal is just an easier matter altogether and does not require a doctor, let alone two doctors, to make that decision. In fact, it is often harder to make those decisions at the time of renewal. Even when the presence of mental disorder may remain evident, the difficult issues are those of nature or degree. The judgment needs considerable training and experience in managing psychosis if one is to get those rather sensitive issues right.
	It is important to note on a different side of this that the UK's Council of Disabled People is opposed to these clauses, which extend the range of professionals who can detain patients. It asserts that,
	"individuals will not have the same positive therapeutic relationship with their counsellor, psychologist, psychotherapist or community mental health nurse if they have detainment powers. It is less likely that individuals will seek help if the healthcare professional has these powers".
	That is the service user view. The professional view on the one hand and the service user view on the other seem to line up behind one another.
	I understand that the assumption behind the proposed change is that a skilled psychologist may be able to decide upon the renewal of detention in the case of patients with personality disorders whose treatment may be predominantly psychotherapeutic or educational. I agree that in cases where there is no mental illness a consultant clinical psychologist could act as the responsible clinician. However, if the Government wish to leave the legislation open to this possibility—in my humble view, reasonable—then the Bill will need to be amended to clarify the extent of qualification required for the job. My key point is that the legislation must also be clear that for the renewal of detention of a patient with a mental illness—we are talking about a psychosis here—two medical recommendations should be required, just as the Bill requires for the original detention. It is a matter of being clear about psychotic illness on the one hand and personality disorder on the other.
	We have a personality disorder unit in the East London and The City Mental Health NHS Trust, where I am chairman. My understanding is that the treatment regime for our patients in the unit can be complex, including a mixture of medication and a range of therapies. In such cases two medical recommendations would be essential. Of course, if the therapeutic benefit test amendment is lost and people can in future be detained for behaviour, control and education alone, then we could find that a nurse who is providing some basic skills classes could approve the renewal of detention in order to continue her classes. I am sure that this is not the intention of the Government. I raise this slightly extreme example only because I think that we need to be conscious of where this Mental Health Bill is leading our mental health services. Is this really the direction of travel that we want?
	The Bill as it stands extends to other professionals the role of responsible clinician for a wide range of decisions. The amendment applies simply to one. In particular, I would be very concerned about a clinician who was not a psychiatrist initiating community treatment orders and recalling persons subject to community treatment orders to hospital. We will no doubt return to that issue when we debate Clause 25. In conclusion, I urge the House and the Minister to support the amendment, to ensure that only clinicians trained and experienced to assess psychiatric patients, and who have the understanding of treatments, their side effects and potential benefits, have the authority to renew the detention of mentally ill patients.

Lord Carlile of Berriew: I am grateful to those who have taken part in what has become an interesting and lively debate. I cannot aspire to the dash, style and pizzazz of the noble Earl, Lord Onslow, but, if he will allow me to say so, I may be slightly more gallant than him this afternoon in thanking the Minister for speaking in such detail in answer to the amendment. I listened to her every word with care and I must say that my conclusion is that the Government are approaching the issue with eye-watering complacency, which causes me deep regret. The noble Baroness has listened to a number of speakers in this debate, of whom the majority—I do not include myself in this—are real experts in the field about which we are talking. They are people who have had their hands—literally, their healing hands—on the patients of whom we are speaking.
	When a Government change their mind, one always looks for reasons. The Government have changed their mind on this issue. It is absolutely clear from the Government's attitude to the 2004 draft Bill that they believed at that time that additional safeguards were needed. That is presumably why they included those safeguards in the draft Bill and it is for exactly those reasons that the committee, which I chaired, shared its concern that those additional safeguards were needed. The Government have now withdrawn from those safeguards to a position in which they are saying that the 1983 Act provides perfectly well for renewal. No cogent reasons have been given, other than—if it be a reason—that the 1983 Act works reasonably well so there is no reason to change it.
	The noble Baroness spoke about competencies. I urge the Committee to beware of the word "competencies", which arises in all forms of qualification approval in the public sector these days, not least in the legal profession and in the appointment of judges. It usually involves self-assessment or, at best, rudimentary assessment by others. Competencies are no substitute for recognised professional expertise; the word means something quite different. I feel great disappointment at what is turning into the dumbing-down of the skills required for renewal, rather than the approval, expressed implicitly in the draft 2004 Bill, for increasing the requirements.
	The Joint Committee on Human Rights was troubled about this part of the law and asked the Government to explain why they thought that the current situation under the 1983 Act was compatible with the Human Rights Act and the convention. The Bill as a whole has been certified as being compliant with the convention, but it would be of great assistance if the Minister could respond on this point—I apologise for not raising it earlier. We can then be clear on whether the Government are right.
	It would not be appropriate to divide the Committee on this matter today, but it is currently my intention—and possibly that of others—to return to the issue. With that in mind, I beg leave to withdraw the amendment.

Baroness Murphy: There were some good things in the 2004 Bill which have sadly been omitted from the amenment Act. One was to set up a single gateway into compulsory powers under which every patient had a 28-day assessment period before being either discharged or placed on a compulsory treatment order by a tribunal. Under the 1983 Act the assessment period under Section 2 may be bypassed, and some patients placed immediately on a treatment order in Section 3, which enables clinicians to bypass an early application to the tribunal. There is a right of access to the tribunal to challenge each order. The purpose of this amendment is to provide for a single gateway into the system for the exercise of compulsory powers, similar to that in the 2004 Mental Health Bill, to ensure that any individual who is potentially to be detained and treated against his or her will in hospital always undergoes a period of assessment before that occurs. This approach was also recommended by Ginevra Richardson's expert committee, and adopted for the 2004 Bill.
	The merit in that is that circumstances change clinically, the nature of the disorder may change, and it is always a mistake to assume that because somebody has had it before, this is another episode of the same. I have seen many such mistakes made when people are re-admitted, harking back to what was said by the noble Baroness, Lady Finlay of Llandaff, in her response to the previous amendment. Something seriously amiss has happened in the patient's life to justify intervention under the Act. The factors that precipitate the detention and their impact on the patient need to be assessed. The single gateway provides for an early tribunal when admitted, and a second bite at the appeal cherry if they are then subsequently detained.
	This has been supported for a number of years by Jones's Mental Health Act Manual, the established authority on the Mental Health Act for practitioners. It was also encouraged in the first code of practice for the 1983 Act, which I made a contribution to writing. Chapter five of the 1999 revised code of practice gives a rather longer discussion of when Section 2 should be used and when Section 3 could be, and suggests that the frequently admitted patient might come in on a Section 3. Since then, the Mental Health Act Commission has noted an increase in the use of Section 3, but it does rather miss the clinical point about the purpose of assessment and the greater opportunity for an early tribunal.
	We cannot get the full impact of a single gateway into the 1983 Act because the role of the tribunal in authorising compulsory treatment has been omitted, but the amendment could get us near enough to doing so. I stress that clinicians consider that what is proposed here is normal best practice, but not all psychiatrists have followed it, and I think they probably should.
	It becomes particularly important in the case of any form of supervised community treatment, because in theory someone could be admitted for treatment directly, remain in hospital for one day and then be placed on supervised community treatment. The Government's response will rightly be that that would be rather bad practice and that we would expect people to behave better. Nevertheless, these very serious decisions, if we are to take them, require considerable in-patient assessment, and if we have a single gateway into care, a patient will be guaranteed a proper and thorough assessment each time. I beg to move.

Baroness Neuberger: I support the noble Baroness, Lady Murphy, and the noble Earl, Lord Howe. As many noble Lords know, I spent several years chairing an NHS trust which had a major mental health component. I agree with the noble Earl that we should keep away from saying that best practice means that X or Y will be done. The problem is that in a very stressful ward with staff and bed shortages best practice does not always apply. Any of us who have had much experience of the system would say that at best it applies, at worst it does not apply, and that a lot of the time best practice is somewhere in the middle and is applied some of the time. For that reason, it is important that we go back to the principle accepted in the 2004 Bill; namely, that there is a period of up to an up to 28 days that gives people a breathing space. The noble Baroness, Lady Murphy, was right: in particular, if we move towards compulsory treatment in the community, it is key that people have that breathing space.
	I also want to comment on the point made by clinicians who have argued that patients who are already well known to the service should not require this period of up to 28 days because they are revolving-door type patients, are patients who have been admitted before on a voluntary basis or, having lacked capacity, have not objected to being there. Those arguments are profoundly wrong. If compulsory powers are to be contemplated, as the noble Baroness and noble Earl have said, the situation has in some quite profound way changed. The patient may now object to being in hospital or, significantly, may object to the treatment, which can be very unpleasant, or may have got worse. For those reasons, I support this important amendment.

Baroness Royall of Blaisdon: As we have heard, Amendment No. 9 would require all civil patients to be detained under Section 2 when first admitted to hospital. Noble Lords have spoken with great expertise and authority on this, and I understand that this is not a minor amendment. However, I should say to the noble Earl, Lord Howe, that this has nothing to do with cost-cutting. What we are talking about in the Bill is the need to ensure that patients receive the best treatment available and that we make the best use of the resources available.
	Of course, no patient should ever be detained without the need for detention being assessed first. Similarly, no patient should be treated without an assessment of what treatment they need. However, it does not follow that all patients who need to be detained under the Act need initially to be detained under Section 2. In fact, only around a quarter of those detained under Section 3 have been detained under Section 2 first. Many clinicians believe that Section 3 has a valid purpose as a primary form of detention in its own right. Patients who are known to mental health services and are presenting with the same symptoms as in previous episodes should be detained under the appropriate section. I hear what the noble Baroness says, but if it is known what is wrong with the patient and that "appropriate treatment is available", Section 3 would be the most appropriate section. The simple fact is that they do not need to be detained for assessment, and arguably the person making the application and the doctors supporting it would be forced to claim something they did not truly believe. However, I recognise and accept the point made that people may change between assessments.
	We could try to tackle this by making the criteria for Sections 2 and 3 the same, but that would not be right either, because there are people who need to be detained for assessment precisely because it is not clear whether they need to be detained for treatment. It must be remembered that many patients have an ongoing relationship with mental health services, and people see the changes taking place. They stay in contact with services and may admit themselves as informal patients if they feel their mental state is deteriorating. These patients will be assessed and, where necessary, treated in hospital as informal patients. But if something changes and they then require detention under the Act, it may not be necessary for them to be detained for a further assessment under Section 2. In 2004-05 some 37 per cent of detentions under Section 3 were of people already in hospital. All patients detained under the Act are continuously assessed to ensure that the initial diagnosis is still correct and that the treatment remains appropriate. Patients admitted for assessment under Section 2 can still be treated even though there is no requirement to establish that appropriate treatment is available before they are detained.
	Section 2 provides the right to reply to the tribunal in the first 14 days of detention, with a tribunal hearing within seven days. If the real issue behind this amendment is a desire to give all patients earlier access to a mental health review tribunal, this we believe is the wrong way to go about it. The Department for Constitutional Affairs is undertaking a series of programmes to improve the efficiency of mental health review tribunals in England and to shorten the length of time between application and tribunal hearing. In addition, the Bill provides for an order-making power that will enable the Secretary of State and the Welsh Ministers to reduce the period before a patient is referred to the tribunal by the hospital managers. Those safeguards will improve access to the tribunal.
	In response to the noble Earl, Lord Howe, all patients detained under Section 3 are entitled to apply to the tribunal and will receive a hearing, on average, within six weeks of applying. The noble Baroness, Lady Murphy, asked whether someone could be placed under SCT after one day in hospital under Section 3. In many ways, she answered the question herself but, of course, someone can be brought under the powers of the Act only if they meet the conditions of Section 3. It is highly unlikely that someone brought into hospital under Section 3 would qualify for that the very next day. We believe, as do many clinicians, that the current admission structure, which enables Sections 2 or 3 to be used, is the most appropriate and I therefore ask the noble Baroness to withdraw this amendment.

Baroness Knight of Collingtree: Until recent years, it was always without question that patients in hospitals would be given food and fluids. That was absolutely automatic. Everyone knows perfectly well that, without food and fluids, every living creature will die. If anyone were to be sick in hospital, they would be fed. There was no doubt about that once, but not any more.
	We all understand that some conditions and illnesses mean that a patient cannot take food in the normal way through the mouth, but for over 100 years there have been other ways to ensure that patients get the sustenance that keeps them alive, and those ways were adopted. Yet a few years ago—I am not sure when, as it made no headlines at the time—the medical profession decided to reclassify the custom of feeding hospital patients. It was henceforward to be called "medical treatment".
	Plainly, that classification is absurd. Is a mother giving a bottle to her baby giving that child medical treatment? Is a husband taking his wife out to dinner to celebrate an anniversary giving her medical treatment? Do we go to the Long Table in the Dining Room to receive medical treatment? Of course we do not, but the change in classification means that people in hospitals may no longer rely on getting their meals as an automatic part of hospital care. As that is now "medical treatment", the doctors or other hospital staff decide whether it will be administered. That is a hugely significant change.
	I do not believe for one moment that patients are routinely left unfed or that a large number suffer in this way. For some years now, however, I have become more and more concerned about evidence that is accruing that it is not uncommon for hospital patients to be starved to death, or to die for lack of fluid. I must remind your Lordships that that is a terribly painful way to die. In the latter stages of starvation, people are too weak to put forward any strong demand for food or drink, and they die.
	I first drew attention to this situation in a debate reported in Hansard on 12 March 2003. I pointed out that the noble and learned Lord, Lord Mustill, was on record as saying, following the reclassification of feeding as medical treatment, that the law is now left in a morally and intellectually misshapen state. I quoted from an ITV programme that showed patients who had been left without food. One old man was lying in bed, weak and unable to speak. He was being given neither food nor water directly or by any other method. He took 18 days to die.
	A lady told me that her husband, who was a stroke victim, had all fluids denied him without a word to him or to her. She demanded to see the doctor in charge and that her husband be given something to drink, or at least to moisten his mouth. He began to get better as soon as her insistent demands were met. I am told that later she was able to take him home and look after him there.
	Evidence, which I hope the Committee will agree is incontrovertible, came from the other place. A friend and colleague, who was an MP for many years and had some heavy jobs and important responsibilities, has a wife who became very ill. He was taking as much time as he could from his duties to sit by her hospital bed. After three days he thought, "That's funny. I can't remember any occasion in the last three days when she has been given any food or liquid". He asked the staff nurse about this, and she said, "Oh, we're not feeding her". He said, "Who on earth agreed to that?". No one had. His wife was not told, nor was he; she was just denied food and liquid. That actually happened; it was the experience of a colleague.
	On the day I spoke of these things in this Chamber I introduced my Patients' Protection Bill, which would have given some protection to people who were being treated like this. The Government blocked that Bill, but the Minister, the noble Lord, Lord Filkin—who, I am sure, wanted to help; he was utterly sincere—told me not to worry, because the aims of my Bill would be achieved in the 2004-05 Mental Health Bill, which at the time was going through this House. Indeed, that Bill contained some words that might well have ended the appalling practice of starving patients. So I sat back and waited to see whether the noble Lord's genuine suggestion to me, that it would all be all right in the future, came about. I am sorry to say that it did not. Things, in fact, have got worse.
	That is why my amendments are on the Marshalled List. We were told—indeed, it was mentioned in the Queen's Speech—that this Bill would amend the earlier Bill. Because I was told the necessary changes would happen in the earlier Bill, and this is an amending Bill, I tabled these amendments to this Bill. I would not normally have sought to insert them in a mental health Bill, but anything done by the noble Lord, Lord Filkin, for whom I have enormous respect, is quite good enough precedent for me.
	I have listened with great care to almost all the debates on this Bill so far. I take this opportunity to register huge admiration for the level of expertise displayed by those who have contributed. This House and our country are greatly indebted to Peers such as the noble Baronesses, Lady Murphy and Lady Finlay, and the noble Lords, Lord Alderdice and Lord Carlile, who between them have years of hands-on experience of what happens with mental patients and with the law. This House provides the country with a wonderful thing: so much expertise from people who know exactly what they are talking about; and advice from the wealth of that experience just when we need it. How fortunate we are to have the benefit of that at no cost. I am only sorry that the Government take no notice, but that does not nullify the contributions made.
	I would not presume to speak in a debate that belongs to those professionals, but I have listened with great care and I have attended several meetings about the Bill. I was on the committee studying the previous one and I understand exactly what this Bill is about. I tabled my amendments not because I judged a mental health Bill to be the right place for them, but because of that precedent.
	I am also told that my amendments are unacceptable because one of them would mean that patients who have anorexia could not be helped because they do not wish to be fed, and that the amendment would harm their treatment. That depends on how one reads it. It says that a patient "has not consented", but it is not a matter of that. In any case, we could argue that one way or another. The two final amendments make quite clear what I am aiming at; they say clearly that the assessment should be changed:
	"In section 64(1) of the Mental Capacity Act 2005 in the definition of 'treatment', after 'procedure' insert 'but does not include provision of adequate food and drink'".
	It is amply clear that I am trying to protect patients by disallowing doctors to refuse them food or liquids.
	There is urgent need for the law to intervene in this matter. My Bill to save patients, as I have said, was blocked. The pious hope that the previous Bill would save them has not come true. I am afraid the situation has worsened. Recently, a hospital doctor, speaking in court under oath, said that two or three patients a week were dying in his hospital alone because they were not being given food or fluids. He said, "I see it happening all the time".
	After the most recent BBC programme on this subject, which was broadcast just before last Christmas, the presenter received a huge number of follow-up calls telling of individual experiences of friends, acquaintances or relatives who had been denied food or fluids. One complaint came up time after time, and I would not be surprised if Members of the Committee had not heard it in their own spheres: a cup of tea, a glass of water or even a plate of food would deliberately be placed where a bed-bound patient could not possibly reach it and after an hour or so a nurse would come bustling in and say, "Oh, not hungry today, Mr Jones?", and without receiving an answer would just remove it. That complaint was made dozens of times. There were nearly 140 complaints recounting experiences such as I describe. Those things worry me greatly.
	Of course I understand how busy nurses are. I appreciate that feeding patients takes time and patience, but we really cannot go on like this. The person in charge must make sure that the staff feed the patient, appeal to relatives to give their help, seek volunteers—I think that many would be ready to help in this way—or allocate money for more paid help in feeding patients.
	In what I believe is still, by and large, regarded as a Christian country, or at any rate a humane one, we must not stand silently by while sick people are killed by deliberate starvation. I know about elderly bed blockers. I read in the paper only last week that they are such a nuisance that they will be sent home and their family doctor will have to do any follow-up. I do not know whether that is true—one does not believe all one reads in the papers—but it was reported. I realise that some people are really rather a nuisance and their room is preferable to their company but I simply cannot accept that they should be deliberately done away with.
	These amendments are framed with care. The matter is not always straightforward, and I tried to indicate that sometimes a patient may not want food for various reasons, or they may actually be harmed by it. These changes would reinstate feeding patients as the recognised norm. It would send the message that patients must be cared for properly. It will no longer be possible for medical staff, without the slightest opportunity for a friend or relative to comment or even to be told, to withhold food and drink from a patient. The seriousness of such an act will be underlined by the involvement of a responsible medical officer, as set down in the amendment, having to certify in writing why it is being done. The patient will have to be consulted. It will not be possible simply to put the notice "nil by mouth" on the patient's record, masquerading under the guise that he or she is being given medical treatment.
	I have had several instances reported to me of patients begging relatives to give them a drink or even just something to moisten their mouth but because those relatives humbly believe that the hospital must know best—and many do—they think there must be some important medical reason for the decision. They think that they are not important enough to argue against what is being done to their dear ones. I recall one woman who told me that when she finally gave in and gave her mother a damp sponge to suck, she was appalled to see that the gums and flesh inside her mother's mouth were stuck together because her mouth was utterly dried up. A post-mortem on one old man showed that his tongue had rolled right back down his throat while he desperately searched for water.
	If we fail to act, if we turn our backs and silently acquiesce with the practice of starving people to death in our hospitals, even if it only happens occasionally, real fear will spread in the minds of anyone over 65 if they learn they must go into hospital, especially if they have no friends or relatives to visit them. They are already scared; they fear MRSA or Clostridium difficile (CD), the new menace in hospitals, but this new fear will be even more terrible. Medical treatment is one thing; providing an essential for life is quite another.
	The Minister may seek to deny that this amendment is appropriate here; if so, will he say where these amendments would be appropriate and whether or not he is happy to allow the present situation to remain? I beg to move.

Lord Patten: I spoke during the proceedings on the Mental Capacity Bill when it was before your Lordships' House. I have attended each of the Committee days, waiting for the opportunity to give my strong support to my noble friend Lady Knight. I do so as someone who is in no sense an expert although my record on feeling strongly about these issues is as long as your Lordships' arms combined.
	I will not repeat what my noble friend has said, except that she is absolutely right. There must be a profound respect for life, especially at a time when human life is at its most vulnerable—perhaps involving mental and physical health problems at the same time, which we must take into account. It must surely follow that any patient should receive adequate food and drink, subject to the provisos of my noble friend's amendments. She may, of course, be considering amending her own amendments in due course, in the matter of anorexia and other issues, to make the amendments that she is moving acceptable to the Committee. Perhaps the Minister will help us on that.
	I say all that by way of introduction—I have only two points that I wish to make. First, I wish to stress the importance of the very new United Nations Convention on the Rights of Persons with Disabilities. This was accepted by the United Nations General Assembly only on 13 December 2006. Article 25 of the convention specifically concerns health. Paragraph (f) of that adopted convention forbids:
	"Discriminatory denial of health care, or health services, or food and fluids, on the basis of disability".
	By its own definition, this of course includes mental disability or cognitive disabilities of any sort. I hope that I am right in presuming that the United Kingdom will be, if it is not already, a state party to this very important convention.
	Before we return to this issue later in the Bill, perhaps the Minister would very kindly do three things, either in his wind-up, or in a letter—it might be more convenient for him place a copy of the letter to me in the Library of the House. First, will he confirm that we either are, or intend to become, a state party to this extremely important convention? Secondly, will he give us a timetable—or at least an outline timetable—for the adoption of this convention? Thirdly, will he explain to me and noble Lords how he, his ministry and NHS professionals will abide by this very recent convention, which has not perhaps received the attention it deserved in the media because of the Christmas period between then and now?
	My second point is to raise, in the context of this amendment, the growing fears among some, to which my noble friend Lady Knight has already alluded in graphic terms in her admirable and very disturbing speech—I hope and suspect that they are generally unfounded—that there might be a risk of those with mental and physical problems, unwillingly or unwittingly being starved and/or dehydrated to death in NHS hospitals. I will not repeat what my noble friend and other noble Lords said about this very important issue.
	Some professional observers working in the service have, since Christmas, represented to me that to them the principle of saving life in the NHS is sometimes—not often—being subordinated to subjective judgments on the questions of so-called quality of life. That quality of life is all too often measured by what seems to me and to those professionals to be the wrong standards; that is, that of the mentally and physically fit and able, rather than people in their own terms.
	I hope that that is generally wrong, but there is a bit of evidence for it. There is even more evidence that people are fearful, and that therefore it does become a reality, which I suspect the Minister and his colleagues will have to deal with. I see a growing paradox in the fact that for many years now, people were very glad to carry organ donor cards in order to give; yet now I am told that there is a growing grassroots movement, in which some people are being given, and wish to carry, what I can only term in shorthand "self-protection cards". Should they go into hospital, they will attest through that card that they do not wish to be dehydrated and/or not fed. I have not seen these cards, but I am told that there is a growing movement to promote them around the United Kingdom. My noble friend Lady Knight, with her acuity and speed, has handed me one. It is orange, and therefore it is an all-party card. I will read to the House from it. I never used to get this service in another place from my noble friend. I thought that I was her Parliamentary Private Secretary this afternoon, not the other way around. The human rights care card states:
	"I direct any person who has care of me at any time to uphold and protect my right to life as guaranteed by Article 2 of the European Convention. Under no circumstances do I want food or fluid (howsoever delivered) to be withdrawn for the purpose—or a purpose—of hastening my death".
	I have no present intention of dying, but I hope my noble friend will get me one of these cards, which is now hastening its way back to her.
	Perhaps the Minister has had the time to reflect on whether those cards have any force in law. Are they legally binding statements? If my present intention not to enter hospital turned out no longer to be true, and I had one of these cards and I was in hospital, is it a legally binding document? I wonder whether the Minister might be kind enough, having reflected on this issue, to draft a letter to me that can be placed in the House of Lords Library, giving a clear indication of whether the Government approve or disapprove of such cards. Perhaps the Government intend to introduce in parallel with the organ donor card a card such as the one that my noble friend Lady Knight has just drawn to the attention of the Chamber. I look forward very much to his reply in whichever form it comes, either orally this afternoon or by letter, or letters, later on.
	It is the first time that the noble Lord and I have debated in any place since he and I were rookie councillors in the old City of Oxford council chamber. The noble Lord, who I greatly admire, was a representative of what was then thought of as old Labour, just as I was a representative of what was then thought of as new Labour—

Lord Carlile of Berriew: My long-standing and considerable affection for the noble Baroness, Lady Knight, is equalled by my admiration for her ability to touch sometimes upon real and important issues. She has done exactly that today, and I am sure that I speak for everyone on these Benches when I say that we support the purpose and spirit of her amendment. This Chamber is full of lawyers and other experts, such as doctors, who tend towards the theoretical. The noble Baroness tends to avoid the theoretical by highlighting the real, the practical and the human—the actuality of situations—and she has done that powerfully today.
	What the noble Baroness has said has been evidence-based in every instance. The law is experienced in cases in which people refuse to take food, because hospitals have, from time to time, brought actions in the High Court to ensure that they are safe in their decision to compel patients to take food. The best-known case is that of Ian Brady, who was refusing to take food, and Ashworth Hospital was authorised to force feed him as part of his therapy. But, in law, we do not have anything like the same experience of actions that a hospital has pursued regarding its failure to give food to a patient, because it is usually too late. As the noble Lord, Lord Patten, reminded us in another powerful speech, there are already international obligations to provide food to patients; the new United Nations convention to which he referred is the latest, but we have heard also about Article 2, one of the most fundamental provisions of the European Convention on Human Rights. There is a right to be fed and there is a right to expect those treating a person in hospital to feed that person.
	Those of us who have elderly relatives—in my case, I am happy to say, an extremely feisty, determined and independent mother in her 90s—know that determined elderly people like her, who value their independence, still live alone and look after themselves, are afraid of what will happen to them if they go into hospital. When they are in their own homes, they feel very independent and are very capable. But sometimes, when an elderly person of a similar age has been taken to a hospital due to an episode of illness, they can appear to be completely disoriented and they feel utterly disempowered. The noble Baroness's amendment would ensure that we could say to very elderly people, "You don't need to be afraid to go into hospital, because you have some rights". Those rights would be there, not only under theoretical international obligations, but would be written down, either in statutory form or in codes of practice.
	I would like to hear the Minister say that the Government recognise that there is a problem, that from time to time some very bad cases appear, as described by the noble Baroness, and that it would be right, somewhere in the framework—whether in the Act or in codes of practice—to ensure that it is made clear to clinicians at all levels that potentially vulnerable patients cannot be left to starve and that they have the right to food and/or liquid—bearing in mind the problems expertly aired by the noble Baroness, Lady Finlay. I hope that the Minister will support at least some of the principles behind the amendment.

Lord Hunt of Kings Heath: I congratulate the noble Baroness, Lady Knight, on taking the opportunity to bring before us what are clearly very important matters. She has waited patiently for two days. I am sure that she thought she might be moving the amendment on the first day, but we have all waited with anticipation. I was very concerned about what she had to say. I was also very concerned about some of the other remarks made by noble Lords about vulnerable people fearing to go into hospital for fear of what may happen to them in a number of ways.
	As a number of noble Lords have anticipated, I do not think that amendments to this Bill or to other Bills are the way forward. I clearly understand the need for us to ensure that the health service is absolutely clear about the principles under which food and drink should be given, and that there should be no doubt whatever by the health service about that. I shall describe later how I think that might best be done.
	I particularly would like to underpin the comments of the noble Baroness, Lady Finlay. These are often very difficult clinical decisions that have to be made by doctors. I also think that we have to be understanding about some of the issues they have to consider when considering the patient's best interests.
	I start by saying quite clearly that I completely agree with the noble Baroness that food and water, however delivered, should never be withheld if it is in the best interests of the person to receive it, and that the offer of food and water by mouth should always be provided. I also say that assessments of an individual's best interests must be at the centre of decision-making on behalf of people who lack capacity to make decisions. That is true now, and it will be strengthened by the Mental Capacity Act when it comes into force later this year. It is, therefore, the person's best interests that we have to consider when considering these amendments.
	A best interest assessment about treatment entails a thorough assessment of someone's condition, their prospects of recovery, the pain they are suffering and any burdens associated with available treatments, including invasion of bodily integrity and interference with human dignity. Let us be quite clear here: it will not always be in someone's best interests to have every available medical means of delivering nutrition and hydration imposed on them.
	I would like to follow up the comments made by the noble Baroness, Lady Finlay, in that regard. Where a patient cannot swallow, water can be provided by intravenous drip, but food can only be delivered by a tube down the nose or surgically inserted into the abdomen. That must surely be a medical intervention. Doctors and families will need to decide whether such treatment is in all the circumstances in the best interests of the patient. In doing so, they must have regard to what they know about the patient's own wishes.
	I understand that there are risks associated with artificial nutrition and hydration, as with any significant intervention. My understanding is that there is an infection risk. A fluid balance must be monitored to avoid waterlogging. Regular blood tests are needed to monitor the kidneys. It is common to have to manage diarrhoea and regurgitation. Nausea and vomiting may result in certain clinical risks.
	There are circumstances where the provision of artificial nutrition and hydration might do more harm than good. For example, if the patient can no longer absorb food and water because their digestive system has broken down, it might be better to refrain from tube-feeding and instead continue to give good mouth care, sips of water and palliative care. My understanding is that the wording of the amendment might mean that artificial nutrition and hydration had to be continued in these situations. These will never be easy decisions to make. The Mental Capacity Act recognises that they depend on what is best for a person; it recognises that proper care and treatment should be given and not wrongly withdrawn. The intention behind the amendments and some of the speeches made today might be to remove choice or flexibility in these sensitive and very personal matters.
	The noble Baroness, Lady Finlay, gave the example of a patient who desperately wanted a cup of tea, and said that in a risk-averse culture many practitioners might have been reluctant to give that patient a cup of tea. I understand that, but the noble Baroness also illustrated the reason why clinicians must have discretion in dealing with those issues, and why it is very difficult to describe in legislation how you would deal with such a situation. That is why some of the concerns raised today seem to be much more a matter of malpractice and negligence, rather than what is contained in the legislation. As the noble Baroness, Lady Barker, pointed out on Report in the Mental Capacity Bill, there is a world of difference between bad practice—which is inexcusable and in no way permitted by that Act—and the deliberate withdrawal of a patient's treatment in that patient's best interest.
	The noble Baroness, Lady Knight, made some very serious allegations; she referred to patients being starved to death. I have great admiration for the noble Baroness; she was of great help to me when I was director of the National Association of Health Authorities, based in her constituency. I am very concerned to follow up any incidents that she knows of, and am happy to meet her to discuss them. She has raised matters of clear and evident concern.
	The noble Baroness also talked about problems in feeding patients in the health service more generally. She raised the issue of bedblocking—a term I deplore. The duty of the health service is to give proper care and treatment to patients. It may often be the case that in order to prevent patients becoming institutionalised, and to enable them to go home or into other settings where they could be as independent as possible, various approaches need to be taken to enable people to get up and about as soon as possible. The term "bedblocking" and its connotation is something that I cannot accept in any circumstance.
	I have taken on ministerial responsibility for food, so I fully understand the challenge. In recent years the health service has sought to improve the quality of food and to deal with the issue of how patients are given food on the hospital ward. The concept of modern matrons was partly developed to deal with those issues to ensure that the nurse in charge of a ward had responsibility and authority. I will do everything that I can to ensure that that message is reinforced by the Chief Nursing Officer in regular communications with nurses.
	Several noble Lords, especially the noble Lord, Lord Carlile, and the noble Baroness, Lady Finlay, asked me: if legislation is not the route, what assurance can I give that the matter is taken seriously? We have asked the health and social care inspectorates, including the Healthcare Commission—the bodies responsible for ensuring that proper standards are provided in NHS facilities and in social care establishments and services—to put older people's dignity at the centre of their investigations.
	I understand that those regulators plan to take greater account of how older people are treated, including whether they are given the help that they need to eat or drink. However, I accept that in the light of this afternoon's debate, I need to ensure that the messages given today are heard by those regulators loud and clear. I will do just that. Picking up the comment made by the noble Baroness, Lady Finlay, if there is doubt among medical professions about some of those important matters, I am happy to institute discussions with the professions to see whether more guidance is required.
	A number of other points were raised. I think that it is the first time that the noble Lord, Lord Patten, and I have debated across the floor of a chamber since about 1977, but it was good to hear his intervention. My understanding is that the orange cards would be considered as a statement of the wishes of a patient under Section 4 of the Mental Capacity Act and should be considered as part of a best interests decision, but they do not represent a legal proposition that must be absolutely accorded with.
	The noble Lord asked me about the UN convention. I answered an Oral Question in your Lordships' House as a DWP Minister a few weeks ago on that. Of course, the UK took a prominent role in developing the convention—both itself and as part of the EU negotiating team. When I answered the Question a few weeks ago, my understanding was that the implications of that for current legislation were being considered across Whitehall. I will send the noble Lord a note telling him where we have got to. There should be no doubt that we as a Government have very much supported the work in the UN to produce such a charter.

Lord Hunt of Kings Heath: Without commenting on the wording of the card, which I have not seen, I state that as a general principle, the more that we as individuals consider some of those difficult issues, the more that we can come to a view ourselves and the more that we discussed it with our relatives so that they know our views, the better. Yet when it comes to making what will often inevitably be a difficult decision, it can only be one of a number of factors when considering the best interest principle.
	The noble Earl, Lord Howe, asked about the implementation of the Mental Capacity Act. I think I have answered that but, essentially, part of it comes into force on 1 April. From then, the duty on the NHS and local authorities in relation to independent mental capacity advocates, and some directly related elements of the Act to support those arrangements, will be in effect in England, as will the code of practice and the criminal offence of ill-treatment and wilful neglect. From October 2007, all other elements of the legislation will be operational, including the new court of protection, the public guardian and the office of the public guardian, and the lasting powers of attorney.
	While I do not agree with the legislative route that the noble Baroness proposes, she has raised some serious issues in relation to practice within the health service. I undertake to ensure that the appropriate actions are taken by those people responsible for inspecting the NHS. I will talk to the medical professions in the light of this debate. The clear message one wants to give is that the health service should be not a place of fear but a place of treatment and support. I believe that it is in the great majority of cases and that NHS staff do a very good job. Often they have to make difficult decisions. There is more to do and today's debate had identified an area where we need to do more.

Lord Hunt of Kings Heath: There are a number of issues here. I have asked the noble Baroness, Lady Knight, to supply me with specific, concrete examples, and I am happy to meet her to discuss those. More generally, the role of the health and social care commissions is to inspect health and social care against standards. That is clearly a long-term programme of work but we want them to ensure and put a particular focus on the dignity of older people, on which much of this debate has centred. It is long-term work but I will ensure that the matters raised in this debate will be communicated as quickly as possible. I said that I am happy and willing to do so, and offer to write to the medical professions in the light of the debate today. I will do everything I can to ensure that some of these very important issues are communicated to the people who have the most authority.
	One must understand that this discussion is very much about practice. Inevitably, it can sometimes take time to improve practice. I do believe that practice is improving in general and, as we have discussed, in relation to food. As I said, clearly we need to ensure that it continues to do so, but I want noble Lords to know that the Government take this issue very seriously and that we want to ensure that the health service understands the messages that all noble Lords have sent in this debate.

Earl Howe: In speaking to Amendment No. 14, I shall speak also to Amendments Nos. 15 and 16, which are important amendments about electroconvulsive therapy. Amendment No. 16 relates to Section 62 of the 1983 Act, which covers urgent treatment and states that when it comes to urgent treatment that may be considered necessary for various specified reasons, the special treatment safeguards in Sections 57 and 58 do not apply. As far as ECT is concerned, this means that there is no need for a second medical opinion if the patient has refused consent or where he lacks capacity to consent. I want to suggest very strongly to the Minister that it is time to change that position. I believe that we should look at changing the whole basis on which ECT is administered, even when there is no emergency.
	ECT has been around for a long time, but there is no doubt that over the past few years medical opinion and attitudes in relation to it have changed. There is now a consensus view—which, incidentally, is reflected in the NICE guidance—that the wishes of the patient in relation to ECT should be of paramount importance and that valid and informed consent should be obtained before it is used. There is quite a spectrum of opinion about ECT. There are those who acknowledge that it has adverse side effects, but who believe that these are generally tolerable if the treatment is likely to prove effective. However, there are those who feel equally strongly that the side effects are quite simply unacceptable. The side effects can include brain damage, severe confusion and considerable cognitive impairment. These adverse effects can be long-term. Some patients find that ECT works for them. Others do not find it acceptable or therapeutic and can have very strong feelings against it; often, they can be terrified of it.
	The royal college is firmly against compulsion in ECT and has made the point that if a patient retains decision-making capacity, he or she cannot be sufficiently ill to warrant ECT without his or her consent on the grounds of it being a life-saving emergency. I believe that that point should weigh very heavily with us. Because ECT can have irreversible side effects on memory and cognition, it is possible to interpret Section 62 to mean that it should not be available as an urgent treatment except under Section 62(1)(a); that is, where it is,
	"immediately necessary to save the patient's life".
	But there is uncertainty over this. The form of wording implies that a form of treatment is not in and of itself irreversible or hazardous, but that it might be either or both of those things in any individual case. That legal uncertainty is most unsatisfactory for patients, families and clinicians. Some people have argued that ECT may be given legitimately under all the provisions for urgent treatment in Section 62, not just in subsection (1)(a).
	However, there is now a very widely held view in the medical community that a treatment which is potentially hazardous and irreversible should not be given without a second opinion except in the most compelling circumstances; for instance where it is immediately necessary to save someone's life. Further, if a patient has indicated in a valid advance directive that he or she objects to ECT, that express wish should be honoured. In circumstances where informed consent is not possible, for whatever reason, advance directives should be taken fully into account and the patient's advocate or carer consulted.
	It is in any case not at all clear that ECT can ever be an immediately life-saving treatment in comparison with other treatment options. The British Psychological Society has expressed that view. Certainly it is highly unlikely that ECT would ever be the only treatment available for a patient. In fact, no direct evidence has been found to show either an increase or decrease in mortality in patients who have received it, and the evidence we do have suggests that even severe illnesses respond better to intensive nursing and medical care.
	So I believe we should now look at ECT with fresh eyes. Among clinicians it is controversial in terms of the balance between its effectiveness and its often serious adverse consequences. It excites extremes of antipathy among many patients as a process that is uniquely invasive and distressing. These considerations should encourage us to accept not only that the emergency use of ECT should be restricted to the narrowest of circumstances, but also that its use more generally should be limited by law. It is the firm view of the Royal College of Psychiatrists that it should never be administered to any patient without consent if the patient has capacity. That view was accepted in principle by the Government in the 2004 draft Bill. The technology appraisal published by NICE is equally clear about it. In Amendment No. 14 I am proposing that the Act should reflect what the Government and the professions are signed up to: that where a patient with capacity refuses ECT, it should not be given; and that where a patient is without capacity, it should be given only where the doctor, giving a second opinion, has expressed his opinion in writing that it is likely to have a clear therapeutic benefit.
	If we accept that these amendments are necessary and right in the case of adults, as I hope the Minister will, then we undoubtedly need to look carefully at the issue of ECT as it relates to children. In Amendment No. 15, I propose that in the case of any patient under the age of 18, ECT may be given only with their consent and after a second opinion. The consent would have to be that of the patient themselves where they were capable of giving it, or if they were not, then that of a parent or, if need be, the High Court. These proposals represent quite a considerable change from the current position. At the moment, children and young people can have ECT on parental consent alone. If there is no parental consent, or consent is refused, it can be administered against the young person's wishes if a second opinion authorises it. I do not believe that this situation is any longer acceptable. Certainly it is true that ECT is used only rarely in this country on patients under 18, but that does not make the issue any the less serious. We know that the adolescent brain is still changing and developing in its structure. The guidance issued by NICE in 2003 states that the risks associated with ECT may be enhanced in children and young people and that particular caution should be exercised before it is administered to this group of patients.
	The draft Bill of 2004 would have introduced a tribunal or court authorisation of ECT for all patients aged under 16. What the amendment tries to do is to provide for a second opinion under the SOAD—second opinion appointed doctor—system, which goes some way towards matching that safeguard. It also requires that either the young person's own doctor or the SOAD is a child and adolescent practitioner so as to ensure specialist involvement before ECT is given.
	I very much hope that the Government will respond positively to these amendments, and I beg to move.

Baroness Murphy: ECT is not getting a very good press here tonight. So, while strongly supporting these amendments, I would like to bring us back to some practical science and what we know about ECT.
	It is true that ECT has been grossly misused in the past. I remember going to see the film "One Flew Over The Cuckoo's Nest", turning to my husband afterwards and saying, "Goodness me, we never use ECT like that". The following week, the 10-year review inquiring into St. Augustine's came out. It described ECT being used in exactly that way. It was deeply shocking for me as a trainee at that time.
	It is also true that ECT has been used much less often in the past 20 years. It is good to see how little it is used now in most services. But the evidence is that for people with profound depressive, biological types of illness—particularly those in later life, over the age of 60—those illnesses are life-threatening. People die of depression. The mortality rate among those in a depressive stupor is quite high. If you have seen someone near death because they stopped eating and drinking get a little toehold on life again, to enable you to give them the intravenous medications which might enable them to respond over a longer period to medicine, it is very difficult to say, "I will never give that treatment again".
	Unfortunately, it is also true that many of those who do respond relapse within three or four months. But although that sometimes happens, ECT is sometimes the only option that one can think of. Nevertheless, as other noble Lords said, we recognise the deep fear, anxiety and revulsion that this treatment creates in many patients' minds. It seems essential that people should be able to refuse it when they have full capacity.
	As for emergency ECT under Section 62, only very rarely does it seem necessary to give such treatment. I am rather sceptical about it. Someone would have to be profoundly dehydrated to warrant it, and ECT would be a long shot. One would not be able to wait until Monday or a second-opinion doctor was available. I cannot envisage a scenario where a fully capacitated patient who was able to consent would fall into the need for urgent treatment. So this amendment does ensure that a person with capacity who does not consent should not be subject to ECT in emergencies.
	I know that Mind has been pressing for a total ban on ECT in children. I say to the noble Lord, Lord Bragg, that initially I was very sympathetic with the idea of tabling an amendment to that effect. Several US states have banned it but not for reasons of science. The literature is poor. There are about a dozen cases every year, few international series and no randomised control trials. Again, though, with regard to the sort of young person who is given this treatment, the recent literature shows that in almost all cases the people concerned in administering ECT have gone out of their way to seek second and third opinions and a consensus decision from the clinical team. So in practice such treatment is happening very rarely. However, it may be lifesaving for a child who is seriously ill and in a depressive catatonic stupor, which is a very rare occurrence. NICE considered the options carefully and, on balance, decided that it was not wise to ban the treatment if perhaps one child's life could be saved by it. The extra safeguards therefore seem to be the way forward. ECT is always a last resort. I personally would not want to ban it if it saved one child from that appalling condition, depressive stupor.
	I give my full support to these amendments. We have come a long way, but let us not forget that just occasionally patients ask for ECT because it helped them the last time they had a depressive illness. When it is feared and not sought and the patient has no capacity, however, the treatment should not go ahead.

Lord Patel: I support these amendments. I agree that if there had been an amendment that banned ECT for under 18s I would have supported it, but, having listened to the noble Baroness, Lady Murphy, I am happy to support Amendment No. 15 as it is. ECT is not a very pleasant form of treatment; it should be used only with safeguards, and these amendments address that.

Baroness Meacher: I also support Amendment No. 15, tabled in the name of the noble Earl, Lord Howe, and will limit my remarks to the giving of ECT to people under 18. I too was asked to table an amendment that would have banned the giving of ECT to young people in any circumstances, but, having studied the research evidence on the subject, and from my own personal experience of patients who have undergone ECT, I was not persuaded that that was the right course of action. The Howe amendment, on the other hand, allows ECT to be given to young people in extremis, and for me the evidence to date supports that.
	The British Psychological Society document Depression in Children and Young People provides a valuable review of the giving of ECT to young people. There are significant concerns about the adverse effects of ECT; as other noble Lords have said, it may cause short- or long-term memory impairment for both past and current events, and those risks may be enhanced in children and young people, that being the crucial point for me in this short debate. NICE also concludes that there is insufficient information to allow appropriate risk-benefit assessment for children and young people. For both reasons, NICE recommends that clinicians should exercise particular caution when considering ECT treatment in that group. The amendment ensures that clinicians will comply with the NICE guidance, which is a sensible measure for this Committee to ensure.
	The recommendations of the American Academy of Child and Adolescent Psychiatry in 2002 are also a helpful guide to practice. If ECT is to be given, a number of conditions should apply. The following three are absolutely central, and the noble Earl's amendment is designed to ensure that these conditions are met at all times. First:
	"The symptoms must be severe, persistent and significantly disabling, including life-threatening symptoms such as refusal to eat or drink, severe suicidality, or florid psychosis".
	Secondly:
	"Other treatments should have been tried and failed, including at least two or more trials of appropriate psychopharmacology, unless the severity of symptoms precludes waiting for a response to other treatments".
	And thirdly:
	"A psychiatrist experienced in the use of ECT, but not involved in the case, should give a second opinion".
	In May 2003 NICE published its guidance on ECT for depressive illness, schizophrenia, catatonia and mania. NICE follows a similar line to the American Academy, and recommends that ECT,
	"is used only to achieve rapid and short-term improvement of severe symptoms after an adequate trial of other treatment options has proven ineffective and/or when the condition is considered to be potentially life-threatening".
	The draft Mental Health Bill published on 8 September 2004, as others have referred to, provided for very stringent safeguards. For some reason, those have now been lost. This amendment would at least go some way towards restoring them; it is less stringent, but I think it would achieve the desired objective.
	If there are insufficient data on the long-term effects of ECT, and if it is known to carry risks, why not ban it? We can turn to the views of young people who have been given ECT and their parents to provide part of the answer to that question. Three studies, undertaken in 1999 and 2000, of a total of 64 young people who had received ECT and their parents found that a small majority of the young people believed the treatment had been helpful. Most had experienced memory loss—one of the major concerns about ECT, as we know—but "this had largely resolved over time". A further study, undertaken in 1999, of 87 patients with depression who had been treated with ECT aged 18 years or younger showed that 67 per cent had remitted or showed marked improvement of symptoms after treatment. I just do not think we can ignore the experience of people who have been through the treatment.
	We are concerned here with a very small number of the most severely mentally ill, as others have said. Richard Duffett, consultant psychiatrist at Goodmayes Hospital, provides us with, as far as I know, the only statistics available. As the noble Baroness, Lady Murphy, has quoted, he gives a figure of some 12 cases a year. The amendment will guarantee the safeguards necessary to ensure that ECT continues to be given to only a small number of young people with exceptionally severe mental health problems. I hope the Minister will give sympathetic support to this important amendment.

Lord Patel of Bradford: As I have previously declared, I am chairman of the Mental Health Act Commission and as such I have an interest in all the debates concerning this Bill.
	I wholeheartedly support the part of the amendment that seeks to ensure more effective safeguards in the use of electro-convulsive therapy for under 18s, and I support the noble Lords who tabled it. However, I have a number of questions, on which the Committee might wish to reflect, about an across-the-board introduction of a mental capacity test, as suggested by the first part of Amendment No.14.
	I begin by drawing the Committee's attention to the Mental Health Act Commission's concerns over the Government's previous proposal, in their draft Mental Health Bill of 2004, that ECT should not, except in an emergency, be given to patients deemed capable of refusing consent. The commission's data on second-opinion authorisations of ECT showed that in 2002-03, ECT was authorised by a second-opinion, appointed doctor in the face of a patient's capable refusal of consent on 834 occasions. That amounts to 40 per cent of all the second-opinion doctors' authorisations of ECT in that year.
	The Mental Health Act Commission asked the Joint Committee that was considering that Bill, and in its biennial report to Parliament: what would be likely to happen to this proportion of patients who receive treatment under the present legal framework if the proposed change to that framework were made? The possibilities seem to be that such patients would simply no longer receive ECT, they would receive it under emergency powers, or the assessment of their capacity would change and they would be found to be incapacitated. The MHAC suggested that the first possibility—that this cohort of patients would simply no longer receive ECT treatment—was the least likely, given that the second-opinion system had already determined that such treatment should be given according to the tests of medical necessity established in case law. It seemed more likely that the second and third possibilities would occur: that we would see a rise in the use of emergency powers or a rise in the proportion of patients deemed to be incapacitated as regards making decisions about ECT.
	It would be worth exploring how we can address some of those questions more fully and provide the necessary safeguards in respect of an across-the-board introduction of a mental capacity test, as suggested by Amendment No. 14. The indeterminate nature of the concept of mental incapacity could make it an uncertain legal threshold in this important context. Nevertheless, while raising these broad issues, I support without reservation those parts of the amendments that would result in more effective safeguards in the use of ECT for under 18s.
	Thankfully, I do not believe that ECT is used widely for children and young people. The last government survey of 2001-02 counted only four patients between 16 and 18 to whom ECT was administered. However, although the numbers affected appear to be low, we must not be complacent about the need for effective safeguards when such severe treatment is considered for young people. Over the past three years, the Mental Health Act Commission has been aware of nine patients under the age of 18 for whom ECT has been considered, although our data is unlikely to be complete, as the Mental Health Act Commission becomes aware of such patients only if, first, they are detained under the Act's powers, and, secondly, if they cannot, or will not, consent to ECT so that a second-opinion doctor's certification is required. Of course, this amendment would mean that a second-opinion doctor would have to visit all patients under 18, whether or not they were deemed to consent. I welcome that aspect.
	I am sure that the Committee will share my concern at the lack of complete data, and I shall be returning to this issue when I speak to my later amendment on notifications to the Mental Health Act Commission. But I am certain, as noble Lords would expect, that the nine young people whom we know about, for whom ECT was reviewed, were suffering from the most distressing conditions and were generally in a very desperate state.
	In preparation for today's debate, I was able to read the doctors' reports on visits to five of these young people over the past two years. The youngest was aged 15, one was 17 and the other three were 16 year-olds. Four of the five were teenage girls. Their diagnoses all involved severe depressive psychoses, with at least a tentative diagnosis of anorexia nervosa in three of the girls, although all four were being fed by nasogastric tube as a consequence of their refusal of food and fluids. None was deemed to have the mental capacity to give or withhold valid consent to their treatment. Each of them had at least one visit from a second-opinion doctor to consider ECT treatment and some had three or four visits in that time.
	For two of those five patients, the second-opinion doctors declined to authorise ECT on the grounds that the situation was not yet desperate enough to warrant it, or that other alternative treatments had not yet been exhausted. For example, the fact that one patient was accepting food and drink was cited as a reason why, in this case, ECT should not be administered. In another case, the second-opinion doctor specifically recommended that, if ECT were to be considered again, the advice of a psychiatrist with appropriate expertise should be sought, and that this should take place prior to any request for a further statutory second opinion through the Mental Health Act Commission's offices.
	In three cases where ECT was authorised, a single course, which is 12 treatments, was given. In the fourth, which concerned the youngest—and from the records that I have seen, the most desperately ill of all the patients—a total of 20 ECT applications was authorised. This 15 year-old girl was tormented by terrible delusions of becoming contaminated through food, or even through contact with others who had eaten. She frequently needed to be under close supervision to prevent her from severely harming herself and she was extremely withdrawn. I do not doubt the severity of this case and the ECT was reported to have had an initial positive result, but that was short-lived. In fact, the progress she has made since is largely attributed to a combination of psychiatric drugs and family therapy, which have continued throughout her hospitalisation.
	It seems to me that wherever there is doubt about the long-term benefits of a treatment there must be greater caution in its use. That is never stronger than with respect to children and young people. I hope that the Committee will agree that decisions to use ECT in such cases should be taken only with the greatest care and deliberation. If we can strengthen the safeguards to ensure that, I think we should do so. I sincerely hope that the Minister will agree with this, whether or not he is prepared to accept the exact wording of that part of the amendment dealing with ECT for children and adolescents.
	I have spoken mostly to that aspect of the amendments because I believe that the safeguarding of children and young people must be considered separately from that of adults. I most strongly urge the Government to accept that. If they cannot accept those aspects of the amendments as they stand, I urge them to come back with a proposal that will have a similar effect.

Lord Hunt of Kings Heath: It is entirely understandable that there should have been a debate about ECT which reflects both historic concerns about its previous extensive use—and, in many cases, poor clinical practice—as well as more modern approaches where ECT may be used. Clearly there are differing views about the use of ECT, some very hard-felt, and it is absolutely right that we should reflect on them.
	Equally there is evidence that ECT can be effective in certain circumstances in the treatment of some psychiatric conditions, such as depression, schizophrenia, catatonia and mania. It is a treatment that I understand to be especially useful in dealing with severe depression, in particular where other treatments such as medication may not be ideal. We have to establish the appropriate balance between ensuring that treatments that may be effective are available for the benefit of patients and ensuring that sufficient safeguards are in place.
	These amendments would place new restrictions on the use of ECT. They would stop clinicians administering ECT to patients detained under the Act who have the capacity to consent to it but who do not consent, even in emergency cases. In other words, the potential effect of the amendments is to take away from clinicians a way of saving a person's life in certain circumstances, preventing their condition from seriously deteriorating, alleviating serious suffering or stopping them behaving in a violent or dangerous manner unless or until the patient loses capacity to consent to ECT.
	I noted what the noble Earl, Lord Howe, said about the interpretation of Section 62 and I will reflect on that. Perhaps he would find it helpful if I wrote to him to clarify the points that he raised.
	Amendment No. 16 would allow for detained patients who lack capacity to consent to ECT to be given ECT, without a second opinion, only where it is immediately necessary to save lives. I am advised that there may be a problem with that in the case of a patient who is taking no sustenance because of their severely depressed state and is at risk of starving as a result. In those circumstances the doctor cannot act to prevent any deterioration in the patient's condition but must wait until the patient is at death's door. On that basis I am advised that there may be circumstances where ECT would be the only appropriate treatment for some patients.
	Amendment No. 14 further provides that no child or young person under 18 may be given ECT if they are capable of consenting to it and do not. If they lack capacity to consent to it then, unless it is immediately necessary to save their life, they may be given ECT only with the approval of a person with parental responsibility or if the High Court decides it should be given. Even where the patient or the parent consents, the treatment must still be approved by a second-opinion appointed doctor (SOAD). Either the SOAD or the doctor in charge of the ECT would have to be a child and adolescent practitioner.
	Before I go on to discuss the issue of parents providing consent to treatment with ECT, I want to note that, by amending Section 56, Amendment No. 15 will make those provisions apply to all patients under 18, regardless of whether they are detained under the Act. Clause 27(2) would otherwise replace the current wording of Section 56 and so leave the current amendment addressing the wrong text. Members of the Committee have signalled their intention to oppose the Question whether Clause 27 shall stand part of the Bill. I mention that in case any noble Lords might have been struggling with two different versions of Section 56.
	It is clearly of great importance that, where ECT is used for children and young people, there are sufficient safeguards. I have listened to noble Lords' comments on that. As they have said, ECT is given very rarely to children. When it is used, it is almost always given to older children—those aged 14 or older. Of course the Government understand the concerns expressed about the use of ECT for children, but as the noble Baroness, Lady Murphy, said, there may be a few cases where it can be of real benefit, often life-saving. That was the view of the Royal College of Psychiatrists in evidence to the Joint Committee examining the 2004 draft Bill.
	It is already the case that a child patient who is subject to the Mental Health Act can be treated with ECT in non-urgent circumstances, without a second opinion, only if he is capable of consent and does consent. There is no provision, if the child either cannot or does not consent, for a person with parental responsibility to consent on his behalf. Instead Section 58(3)(b) requires a SOAD to certify that ECT should be given.
	For children who are not detained but are in hospital as informal patients, the Government have thought it right to enable under-18s who are capable of consenting to ECT to do so without the need for a statutory second opinion. That is on the basis of those young adults having the ability to make their own judgment and therefore consent to such treatment. Having a statutory second opinion would mean being interviewed and examined by a second doctor whom they probably do not know.
	Having listened to the arguments put forward by noble Lords, I am very willing to go back and look at the safeguards for children. I cannot give a commitment that I will come forward with a sympathetic response but I would like to take some time to make sure that we have got this right. I have listened to noble Lords in relation to the safeguards. I do not know the extent to which they would also accept that there is an issue of young people who are competent to make their own decisions. I wish to examine that balance, but I will come back with a response on Report.
	Let me turn to the other question regarding consent. We come back to ECT and its value and uses. Many oppose ECT. We are aware that some psychiatrists believe that ECT risks having a long-term or permanent effect on the faculties of patients, but our view is that there is no consensus on that point. We acknowledge that the Royal College of Psychiatrists supports prohibiting the giving of ECT to a patient who can consent but refuses to do so. A number of noble Lords have referred to the NICE guidance in this area, which recommends:
	"Someone who is mentally capable of making a decision about their treatment should decide, after discussion with the doctor, whether or not they want to give their consent to have ECT".
	While some psychiatrists do not treat such patients with ECT, many do. In 2003 and 2004 the Mental Health Act Commission reported 1,385 requests for second opinion appointed doctors to issue certificates approving ECT where the patient refused consent. The noble Lord has already referred to that. We accept that there are aspects of ECT treatment which set it apart from other forms of treatment. That is why the Act already provides the safeguard of a second opinion for detained patients who either cannot or do not consent to it.
	We are concerned that the tenor of the amendments is to treat ECT as if it were barely a legitimate therapeutic treatment at all. That might unduly limit the options not only for clinicians, but also for patients. Some patients welcome ECT, whether because they think of it as a genuine last resort or because they prefer it to medication. These amendments would deny those patients what they would have chosen for themselves just because they happen to lack capacity at the time in question. Given that we are talking about situations of immediate necessity, it is to be expected that very many patients will lack capacity.
	We see a problem of clinicians not being able to respond with ECT to crises, even if patients have made it plain, in some form of advance statement, that ECT is perhaps what they would want should their condition begin to deteriorate markedly. Even in the case of patients who retain capacity to consent, we think that these amendments may well go too far. We are talking about patients who are detained against their will in a framework of legislation which, as the Committee will know, we believe should be based on needs and risks, not on the patient's decision-making ability. We worry that these amendments might sometimes force clinicians to work with one hand tied behind their back at the very moments of crises when they most need to be free to respond with the treatment that their clinical judgment tells them is best.
	These amendments would mean that detained patients could not be given ECT even where it was an immediate necessity, if they have the capacity to consent but do not. They would limit immediately necessary ECT without a second opinion for other detained patients only in life-saving situations. That would impose a significant new restriction on what may be done under the Act to respond to emergencies. That is what makes us cautious. However, I am conscious that in the 2004 draft Bill we were going to give detained patients the right to refuse ECT where they had the capacity to do so and provided it was not an emergency. In the light of that—

Earl Howe: moved Amendment No. 17:
	After Clause 7 , insert the following new Clause—
	"ECT compliance with standards
	After section 63 of the 1983 Act insert—
	"63A ECT compliance with standards
	Electroconvulsive therapy (ECT) shall not be administered except in a service that has been accredited for that purpose by the Royal College of Psychiatrists.""

Earl Howe: We come now to an amendment which, I hope, the Government will be sympathetic to. It would ensure that ECT is only delivered in a service that meets acceptable standards.
	I shall remind noble Lords who may not know that ECT involves giving a patient a general anaesthetic and passing electricity through their head. The purpose is to cause a seizure, which is intended to have anti-depressant effects. In order to have that effect, the dose of electricity must be enough to cause a seizure, but it should exceed that threshold by as little as possible if adverse cognitive effects are to be minimised. A systematic review carried out for the Department of Health stated that the more effective forms of ECT tended to cause more memory impairment.
	The potential for harm does not relate just to cognitive damage, but to psychological damage as well. ECT, for many people, is frightening and distressing. The fears that people have are unfortunately borne out by the evidence. The noble Lord, Lord Bragg, mentioned the work of Mind, with which I know he is closely involved. A Mind survey, six years ago, of patients' ECT experiences, found a high level of unwanted side-effects. Of those who had had ECT in the two years prior to the survey, 40 per cent reported permanent loss of past memories; 36 per cent reported difficulties in concentrating; 27 per cent reported an inability to remember new information; and 49 per cent said that they would not agree to have it again.
	Respondents from black and ethnic minority communities were more likely to have received ECT without consent, and they had a more negative view of it than the overall sample, with 50 per cent finding it unhelpful, damaging, or severely damaging in the short term, and 72 per cent in the long term. It is therefore clear that, if ECT is to be given, it has to be given in line with best practice—not least in the way that information is provided to patients. I did not mention that, in the Mind survey, 34 per cent of respondents said that they were not aware that they could refuse to give consent to the treatment. The information that needs to be promulgated should also be about people's rights.
	Despite the hazards associated with ECT, the Mental Health Act does not prevent it being administered in clinics where conditions are unsafe and staff are inadequately trained or supervised. The ECT Accreditation Service (ECTAS) was set up by the Royal College of Psychiatrists in 2003 to improve quality standards. I understand it to be a thorough and soundly based scheme, but it is only voluntary. At October 2005, 78 clinics had joined it, and that is about 40 per cent of ECT clinics in England, Wales and Ireland.
	I am sure that we should support voluntary engagement in the ECTAS process, but is that enough? I do not think that it is. I really do not think that it is acceptable that people are being given ECT in clinics that have been or would be denied professional accreditation. I say that because the standards involved in accreditation are all to do with safety. The themes that have emerged in the first two years of the scheme's operation among clinics that did not pass first time include lack of proper risk assessments; lack of trained supervision; absence of essential equipment to monitor the patient's breathing during anaesthesia; no monitoring of adverse events; and an absence of operating protocols. In other words, a failure to meet standards necessarily indicates that absolutely essential requirements of safety, effectiveness and acceptability have not been met.
	I do not know—none of us can know—what proportion of clinics that have not yet joined the scheme would fail to get accreditation. According to the royal college, however, the experience to date suggests that, for a clinic that is initially found to be sub-standard, it is not a difficult or expensive matter to bring its services up to scratch. I very much hope, therefore, that the Government will look most carefully and constructively at the proposal in the amendment. I beg to move.

Baroness Masham of Ilton: This sounds really rather concerning. I ask the noble Earl how many sub-standard units there are in operation. Perhaps if he cannot answer, the Minister can.

Earl Howe: moved Amendment No. 18:
	After Clause 7 , insert the following new Clause—
	"Administration of medicine
	In section 58(1)(b) of the 1983 Act (treatment requiring consent or a second opinion) for "three months" substitute "28 days"."

Earl Howe: Amendment No. 18 takes us once again into serious and important territory. It relates to what is known as the three-month rule. The 1983 Act entitles the medical practitioner to treat a patient with medication for his or her mental disorder without the person's consent—indeed, in the face of his outright opposition—for a period of three months. Before the end of this period, Section 58 of the Act requires that a second medical opinion must be sought from a doctor appointed under Part IV before treatment can continue. A second opinion is required under two sets of circumstances: either when the patient does not consent, assuming he has capacity; or where the patient lacks capacity and the responsible clinician considers that the treatment should be given. What this amounts to in the Act is an exceptional power to override the choice of those patients who retain the capacity to make their own choices. In no other medical context would such a power be countenanced. Theoretically, the responsible clinician should seek the consent of the patient and listen to his or her views, but all too often this does not happen.
	The Mental Health Act Commission has reported as follows:
	"Too many patients feel that they are excluded from decision making and the exercise of choice in their hospital treatment, and unable to discuss their subjective experiences of therapeutic effect or adverse side effects. This is likely to exacerbate the likelihood of non-compliance after discharge and may contribute to the problems of 'revolving door' readmissions".
	That is from the commission's biennial report for 2003-05.
	In fact, the commission finds when it visits hospitals that the issue of medical treatment is a key one for patients. It is an area in which complaints are frequently made. Patients are reported as being dissatisfied with the side effects of their medication and with the medication that has been prescribed without their own preferences being taken into account. Let me remind the Committee of some of the side effects that these powerful and potentially toxic chemicals have on those who take them: serious weight gain, leading to obesity; diabetes; impotence; disabling and embarrassing movement disorders; lethargy; and feeling drugged up all the time. Those are just a few examples out of a very long and pretty unpleasant list.
	Quite apart from the bad side effects, a patient's diagnosis is hardly ever straightforward. It can change several times over the period of detention. Medication not uncommonly needs to be changed. Dosages need to be changed. The whole business of prescribing the right drug in the right amount is very difficult. I would argue that these are factors that militate strongly in favour of careful and prompt oversight of any medication given in these circumstances. Three months of being treated without consent or with a lack of capacity to consent to treatments, which may be causing harm, is simply too long. There is a power in the 1983 Act for the Secretary of State to reduce the period by order. However, this has not happened. Under the 2004 draft Bill, there would have been tribunal authorisation of compulsory treatment by 28 days. In keeping with that, I am proposing through this amendment that the period should be reduced to 28 days.
	Once again, I feel that I should quote the views of the Mental Health Act Commission, from its 11th biennial report:
	"We believe that the current Act provides insufficient protection to patients in the first three months of their treatment under detention, when they may be forcibly given medication in doses or combinations without the oversight of a Second Opinion Appointed Doctor. Some RMOs appear to share our unease: we receive (but have to decline) occasional requests for statutory Second Opinions in relation to such patients".
	Let us seize the initiative and take the opportunity now to give patients an extra safeguard. It is one that I believe will have enormous impact on their health and well being, without, as far as I can see, necessitating any cost implications. I hope that the Minister will share my view that it is time for the change to be made. I beg to move.

Baroness Neuberger: I support everything that the noble Earl, Lord Howe, said and simply add one other piece of evidence from the many we had in support of this amendment. The National Patient Safety Agency's report, "Building a Memory", records some instances where the drugs have seemed somewhat eccentric. We will be talking about that issue later on, but the report particularly suggests as the sort of things where people felt uncomfortable with the drugs that they were given such examples as psychotropic drugs prescribed above the normal amount in the formulary and the use of anti-epileptic drugs as mood stabilisers. The quotation that we got about being drugged up all the time is going to resonate in our ears for a long time.
	Reducing the period from three months to 28 days is not a major thing for the Government to do. It would make a huge difference to how patients feel in terms of safety. They would be more likely to seek treatment if they did not feel that, compulsorily, they might be given for three months treatment that they actively dislike and that makes them feel very unpleasant. I hope that the Minister will see reason in this amendment and in those grouped with it, and perhaps see whether he can do something.

Lord Patel of Bradford: I rise to speak to Amendment No. 18. I have great sympathy with the purpose of this amendment and great interest as chairman of the Mental Health Act Commission, which was mentioned by the noble Earl, Lord Howe.
	It will be useful to go back a bit. The justification for the current three-month period, during which treatment with psychiatric medication can be imposed upon a detained patient regardless of consent, derives from the words of the Minister during the 1982 Standing Committee debates on the Mental Health Bill, as it was then. Practitioners in the field today who seek advice on or interpretation of the statute will find the words of that justification preserved in the Mental Health Act Manual:
	"The three months gives time for the psychiatrist to consider a treatment programme which suits the patient. Three months seems to fit best with both clinical experience and clinical practice. It is long enough to allow a proper valuation and assessment of what, if any, long-term treatment may be needed. It is also short enough to ensure that a patient's consent, or a second opinion, is obtained before a long-term course of drug treatment gets too far ahead".
	Noble Lords may think that that is fair enough. But I have to ask, a quarter of a century later, are we still content that three months must pass before a patient who is being treated with medication has a right either to give their consent or to withhold it? Should it be three months before a patient is afforded the safeguard of a second opinion, when he or she is being forced to take such medication? I think not. I, for one, am certainly not content. Everything that I believe tells me that three months is too long to withhold a patient's rights. I suspect that that is also the feeling of this Chamber. In the 25 years since the argument was made, the general recognition of and sensitivity towards human rights in the health care context has come a long way. I add my support to the amendment. However, I am not ignorant of its possible consequences and I hope that the Minister will forgive me for anticipating his response to the amendment, as I suspect that his greatest concern will be with its resource impact. It is certainly the case that reducing the period before which patients are entitled to a second opinion will cause a rise in the numbers of second opinions. As the chairman of the body responsible for administering those second opinions, this gives me slight pause—but it is only slight.
	In any case, the number of second opinions has significantly increased over the lifetime of the Act by some 250 per cent. The Mental Health Act Commission's last biennial report speculated on the possible reasons for that rise, one of which was that was a growing appreciation and care by clinicians to consider whether apparent consent from a patient was genuine, rather than being based on inadequate understanding, capacity or freedom of choice.
	So far, the administrative burden of the safeguards provided by the 1983 Act has already increased dramatically over the lifetime of that Act. The Mental Health Act Commission has managed that burden and the Department of Health has, in the main, funded it. I urge the Minister to be cautious in rejecting this amendment on the grounds that its costs are uncertain. We should welcome the extension of an existing safeguard over a wider population of those who are treated without consent and be prepared to meet the costs that safeguards may entail.

Lord Bragg: I support Amendments Nos. 18 and 19, tabled by the noble Earl. We now know that medicines used to treat mental disorder can have extremely serious adverse effects and are not always effective. Comments made to MIND include:
	"I was given haloperidol. It made my limbs stiff. It gave me anxiety. I was suicidal".
	Another stated:
	"I want the Government to realise that depixol and other antipsychotic drugs can cause apathy ... It was as if my soul had died".
	The severe side effects mentioned by the noble Earl, Lord Howe, can be added to. It is a long list.
	People often know what has previously helped or harmed them and know how they are currently affected by what they are taking. They are often self-experts in this area. People may be willing to try different approaches than those being considered. These days, three months is far too long for trial treatment before requiring consent or a second opinion, as has been pointed out. Up to a point, I agree with the noble Earl, Lord Howe, that the period should be reduced to 28 days; I would like to see it reduced further. The law should redress the imbalance that is by necessity involved in compulsion, by requiring clinicians to have regard to patients' wishes. That would also help clinicians to find the best treatment for the people concerned. I hope that my noble friend the Minister will take the amendments on board.

Earl Howe: moved Amendment No. 19:
	After Clause 7 , insert the following new Clause—
	"Other treatment safeguards
	(1) The 1983 Act is amended as follows.
	(2) After subsection (4) of section 58 (treatment requiring consent or a second opinion) insert—
	"(4B) When deciding what treatment to give, the responsible clinician shall have regard to the wishes of the patient, whether expressed directly or in an advance statement, and shall record any treatments requested by the patient in the patient's medical record, and if that treatment is not given shall record the reasons for this.
	(4C) In certifying that a treatment should be given under section 58(3)(b), 58(3)(c) or 63A, the registered medical practitioner concerned shall give reasons in writing for his opinion explaining how the treatment represents, for the patient in question, a favourable balance of therapeutic benefit over harm.
	(4D) The reasons given under subsection (4C) shall be communicated to the patient, except where this is likely to cause serious harm to the physical or mental health of the patient or of any other person."
	(3) In section 63 (treatment not requiring consent), at the end, insert—
	"(2) When deciding what treatment to give, the responsible clinician shall have regard to the wishes of the patient, whether expressed directly or in an advance statement, and shall record any treatments requested by the patient in the patient's medical record, and if that treatment is not given shall record the reasons for this.""

Earl Howe: As we proceed through these debates there is one fundamentally important truth that we should never lose sight of: the particularly special vulnerability of mental health patients. It could be argued that all patients, no matter what their illness, are vulnerable to some degree, but those in need of treatment for mental illness are in a class apart. Emotionally they are often debilitated, they frequently find it hard to express themselves coherently and they can easily feel intimidated. Often I hear it said that patients who suffer from a mental condition have a feeling of worthlessness, as a result of which they are not inclined to assert themselves or to stand up for their own interests when otherwise they might have done so. All too frequently they are subject to the kind of paternalistic assumptions that elsewhere in medicine are thankfully becoming rarer; in particular the assumption that respecting autonomy is not all that relevant when that patient's mind is disturbed. The wrongness of that assumption needs to be stated and repeated. Most people, even when mentally ill, and frequently when very ill, are perfectly capable of rational thought and are therefore perfectly capable of making up their own mind about things. In practice, though, that is not how many mental health patients are treated.
	It is against that background that I invite the Committee to consider the amendment. In it and, incidentally, in the one that follows, we confront head-on the twin principles of patient autonomy and transparency of decision-making, and the need to maximise both as far as practically possible.
	Psychiatric medication can have very serious side effects. These can include painful muscle spasms, involuntary movements, loss of energy, weight gain and all the things that we talked about earlier. There is surely no other field of medicine where such adverse effects of routine treatment would be tolerated, but it is surprising how often clinicians are prepared to take them for granted when treating patients with mental illness.
	The joint scrutiny committee, taking evidence on the issue, heard witnesses talk about patients being browbeaten into taking medication, regardless of their wishes, or simply having their express wishes ignored. Yet it is often the patient who knows which treatment works best for him and which ones do not work or are positively harmful. It might be thought that a duty on the part of the clinician to have regard to the wishes of the patient is the kind of thing that would sit better in the code of practice than in the Bill. I disagree. The code of practice has an important part to play in how the Act is implemented, but the particular vulnerability of mental health patients and the gravity of administering treatment under compulsion mean that we need to go further.
	Putting in the Bill a duty for clinicians to have regard to the wishes of the patient would achieve three things: it would improve patient autonomy and the patient's feeling of being involved in his own treatment; it would increase the chance of a patient agreeing to treatment, thus avoiding compulsion altogether; and it would improve the safety and effectiveness of treatment because the patient will often know what has previously helped or harmed him. A doctor may have a very clear idea of what is therapeutically beneficial and feasible for an individual; however, it is not only right that he should take the patient along with him if he can, but the chances of the treatment proving effective are instantly much greater if he does so. If, on top of that, the clinician is required to record the treatment requested by the patient—and, if necessary, the reasons why that treatment cannot be provided—there is automatically much better accountability for the treatment decision and a better basis for assessing what kind of care a patient needs.
	I want to continue that train of thought in the next part of the amendment. It proposes that second-opinion appointed doctors must explain in writing why they have authorised a particular treatment and provide those reasons to the patient. The amendment is carefully worded to reflect recent case law. Case law has established two things in the past five years. First, the second-opinion doctor must reach his or her own independent views on the proposed treatment. Secondly, the doctor concerned owes a duty in writing regarding his opinion when a decision is taken that sanctions the violation of a mentally competent adult patient's autonomy.
	The Mental Health Act Commission has published guidance which advises that reasons should be given for all decisions. That, too, is reflected in the amendment. We are talking about not only an evidence-based approach but one that is transparent. The benefit to the patient is in giving a basis for questioning the proposed treatment or for being reassured about it. That serves to instil confidence in the second-opinion system. This amendment is not only desirable but necessary. I hope that the Minister will consider it favourably. I beg to move.

Lord Carlile of Berriew: I wish to speak briefly in support of this amendment. The noble Earl is absolutely right when he speaks of the evidence that came to the Joint Committee. Indeed, a recurrent theme in the work of the Joint Committee, and the evidence and written representations we heard, was that patients should have the maximum autonomy possible when their mental condition is being treated. Since we published our report, and since the Government's response, I—and no doubt others on the Committee—have received a steady stream of correspondence from patients and ex-patients. The recurrent theme to emerge from that correspondence is that they do not understand why they were given certain forms of treatment. Nobody explained to them why they were given certain forms of treatment. They may be right or they may be wrong; some of those people, no doubt, will be writing in a misleading way, making misleading statements, or may have misunderstood why they were given certain forms of treatment, but that rather begs the question. The important point is that it should be possible to establish why that patient was given a certain form of treatment.
	In an earlier part of my career as a practising barrister, I took on a number of clinical negligence cases. From time to time psychiatry negligence cases arose. They are extremely difficult on both sides. They are very difficult to prepare for the claimant because it is in the nature of the case for evidence to be hard to come by. They are very difficult for the clinician because any clinician faced with a claim for professional negligence finds it, naturally, very difficult to deal with—as do all of us in the professions.
	This amendment requires a very simple change to the way notes are taken, by writing down the reasons why a decision that may have permanent effects on a person's chemistry has been taken. We hope that the Government will see it as appropriate to include this enhancement of autonomy and understanding within the text of the legislation.

Baroness Murphy: I rise to support this amendment. In particular, I want to speak about the second-opinion appointed doctor role. There was, no doubt, quite a lot of resentment from psychiatrists back in 1983, on hearing that their opinions would be questioned by other psychiatrists imposed upon them at a certain point in a person's treatment. This led, at first, to the second-opinion doctor being a rubber-stamping exercise. People would come in, without always arriving when you were on the ward or with your patient, and left their opinion after a brief consultation merely by giving a certificate. They did not have to express a view at all.
	As we have heard, case law has established that this is no longer acceptable. The Mental Health Act Commission have pressed for years—since the 1983 Act—for this to be a proper second opinion. It has become recognised that this is now much more like a realistic second opinion. We owe it to patients to make this a system of realistic second opinion. It is surprising how many times patients have said that they did not know that it was a second-opinion doctor who had come to give an opinion, so I want to add my support to this particular part of the amendment.
	The other part, about taking account of patients' wishes, seems to me very closely related to an amendment that we will soon reach—Amendment No. 21, I think—on advance directives. That is a lesser but equally important element of taking account of what patients say. All we are asking doctors to do is what they would do anyway if they were practising properly: to listen to patients and write down their express wishes. That, coupled with the second opinion being a proper opinion, written down properly so that it can be discussed with the patient, seems to me absolutely fair and reasonable. I cannot think how that would add to the expense of the services. It would go a small way to give patients a reasonable second opinion service.

Lord Patel of Bradford: I should like to make a brief contribution about Amendment No. 19. In part, the amendment is intended to preserve in statute such requirements of good practice and lawful decision-making as have been developed through a string of court judgments relating to the operation of Part 4 of the 1983 Act through its lifetime and to date. It seems to me eminently sensible to do so, so that statute law reflects and protects those basic requirements. I therefore support the amendment wholeheartedly.
	This is just a small point, but I note that the wording requires a doctor authorising treatment as the patient's responsible medical officer, or as a second-opinion appointed doctor, to explain,
	"how the treatment represents a favourable balance of therapeutic benefit over harm".
	The Government have been implacable in their opposition to the concept of therapeutic benefit as a criterion for detention under the powers in the legislation. I think that the Minister knows that this debate has not come to an end. I hope that the Government will not, in the end, continue to oppose the concept of therapeutic benefit, especially in the context of the imposition of medical treatment, where it is surely a most appropriate measure. In any case, I hope that the Minister will take the spirit of the amendment and come back with wording that the Government are prepared to accept.

Lord Archer of Sandwell: My Lords, I hope the noble Viscount, Lord Montgomery, will accept my congratulations, both on having secured this debate and on his admirably clear presentation—and not simply because that is conventional on these occasions. His deep concern for the polar environment has been known to us for many years and, as he reminded us, we owe to him and to the noble Lord, Lord Jopling—as he then was not—the Act which enabled this country to ratify the Madrid Convention. Without our ratification, it would not have entered into force.
	The Antarctic embodies three concepts which are central to our generation. First is what is being called the "global commons". Our early ancestors took possession of such limited portions of the world's surface as they needed for subsistence, just as various species in the animal kingdom fight to protect the limited territory on which their survival depends. Nation states practice no such moderation. They gobble every inch of territory available. Like the enclosure movement in the 18th century, when greedy landlords enclosed more and more of the commons until there was hardly a common left, that is now the pattern of territorial acquisition.
	In the 1950s, at the General Assembly of the United Nations, Ambassador Pardo of Malta drew attention to what he called "the common heritage of mankind". I think he was the first to use that expression. He said that there was little territory left which was not enclosed within national boundaries, but that what was left should be cherished as our common heritage. He named three examples, probably the only ones left: the deep oceans outside the ever-widening territorial margins; outer space; and the polar regions.
	By the late 1960s, we were threatened with a Klondike in the Antarctic; one national Government after another claimed territory. The United Nations, which was then addressing the various dangers threatening the oceans, was less vigilant in protecting the polar regions, and the protection of the Antarctic was left to the 12 states most concerned, which concluded a multilateral treaty—the 1959 Antarctic Treaty. The original parties, and those who were later accorded consultative status, were therefore bound in international law by their treaty obligations, while states that have not undertaken the obligations are not. Perhaps surprisingly, the treaty regime appears to be in good health. There are now plans for a permanent secretariat, which is essential to any multilateral treaty that seeks to apply a regime. When my noble friend on the Front Bench replies, I hope he can assure us that it is guaranteed adequate funding.
	It seems that the parties to the treaty now represent more than 80 per cent of the world's population, but since the treaty could not lay down a globally binding regime, territorial claims are not renounced but only suspended pending wider consideration. They remain suspended, so it is really an interim measure. The treaty was later supplemented by the Convention for the Conservation of Antarctic Seals and the Convention for the Conservation of Antarctic Marine Living Resources.
	The second concept is environmental protection. We may recognise the importance of preserving parts of the globe as our common heritage, but that does not entail a common right to pollute and destroy them. There is now an assault on our family fortune. Human activity far away from the Antarctic is leading to major damage to the ice cap. This is not a matter of the regime simply protecting one continent; there are activities in the Antarctic itself that can damage or destroy it. The Madrid Protocol—the 1991 protocol on environmental protection, which we owe to the noble Viscount—is in force, but the much more robust Convention on the Regulation of Antarctic Mineral Resource Activities of 1988, which would establish a commission, a secretariat and an arbitration tribunal, is still not in force, and perhaps when the Minister replies he will venture to prophesy its prospects. I hope that the United Kingdom, with its commendable record in these matters, will be in the lead.
	The third concept, which deserves a passing thought, is less tangible. The wilderness is now something that we read about in history books. Very little wilderness is left in the world, and if its last traces are lost, posterity will be deprived of something irreplaceable. It is not a scientific concept—indeed, it borders on the mystical—but there are two kinds of people; those who understand that and those who think it is amusing.
	The idea of an International Polar Year, which of course goes back to 1882, is a welcome international project for the mutual sharing and co-ordination of research. As a bonus, it helps to capture the intention of the international community and civil society towards the dangers to the polar regions. However, it comes with a price. Tourism is becoming a profitable industry. Tour operators are organising tours in the Antarctic. Tourism is not necessarily a bad thing if it introduces people to the magic of the wilderness, but it calls for regulation. Time precludes a sermon on that subject, but in the very act of calling attention to Antarctica, we could be in danger of destroying it. Our common heritage is as important as our national heritage. I would like my grandchildren to share it.

The Earl of Selborne: My Lords, I, too, thank the noble Viscount, Lord Montgomery, for giving us this opportunity to consider matters polar. I also pay tribute to his persistent interest over 13 years. Unlike some of the other speakers in the debate, I am not nearly as well qualified as the noble and learned Lord, Lord Archer, or my noble friend Lord Jopling, whose credentials have already been explained.
	The only claim that I can make—it is a pretty tenuous one—is that when Scott sailed south on the "Discovery" expedition through the Ross Sea, he named a cape Cape Selborne after the then First Lord of the Admiralty, who had helped to get what was a naval expedition, and indeed a scientific expedition, up and running. From time to time, I check at the Royal Geographical Society map room to make sure that no one has changed the name, and I am delighted to say that it is still called Cape Selborne.
	This Question refers to the Foreign and Commonwealth Office's organisation of the consultative meeting in Edinburgh in June, and I pay tribute to what was clearly a very successful meeting, one of several that are helping to prepare us for not one year of an International Polar Year but two years, because it goes on until 2009.
	International scientific polar years have been organised on three previous occasions, in the 1880s and the 1930s. In 1957 and 1958, too, there was the highly important International Geophysical Year. If ever one needed an explanation or credibility for organising scientific and explorative programmes on a large international scale, one should consider the success of the 1957-58 programme. That changed our perception of the world. The long disputed theory of continental drift was finally confirmed. Satellites were first launched then—indeed, they discovered the Van Allen radiation belt—and much of the research that was started in 1957-58 continued for many years to come, and still continues. Again, I remind your Lordships that one long-term programme undertaken by the British Antarctic Survey from 1957 onwards led in 1985 to the critical ozone depletion paper, from which came the Montreal Protocol and much else besides.
	The lesson of that is that one- or two-year programmes are highly important in engendering a sense of urgency and focus, but long-term monitoring and the back-up thereafter, such as the sometimes extremely routine number crunching, can be critical. If ever there was a justification for all this, it is that ozone-depletion paper, for which the British Antarctic Survey deserves the credit and from which the international community was able to draw the right conclusions. I do hope that, in the fourth International Polar Year, we remember the importance of basic data collection and the following long-term funding that will be required to consolidate what will certainly be a successful year or two.
	Polar research is expensive. It requires ships and aircraft—fixed costs that must be met whatever the budget. When budgets are cut, as clearly they are from time to time, the impact falls not on the fixed costs but on the science budget. I am slightly saddened to see the response of the Minister in another place, Mr Jim Fitzpatrick, to a Written Question in the House of Commons in November, in which he reported that there will be a decline in the resource budget for the British Antarctic Survey from £40.7 million in 2007-08 to £37.8 million in 2009-10, and a rather more severe decrease in the capital budget. I do hope that these figures will prove to be a cautious estimate.
	I noted the plea of the noble Viscount, Lord Montgomery, for what he described as a coherent policy between the Arctic and the Antarctic, and I very much support him on that. We do need a satisfactory balance between Arctic and Antarctic research. It is perfectly reasonable that the United Kingdom should note its interest in mineral extraction, oil extraction, shipping and fishing in the Arctic regions. Fishing is of particular interest when you remember that the conservation of Arctic fish stocks will become ever more pressing as the Arctic ice recedes. Again, both previous speakers mentioned the pressing issue of climate change and the importance of the polar regions.
	It follows that it is difficult to predict the consequences on the west Antarctic ice sheet or, in the northern hemisphere, the Greenland ice sheet of further warming and melting, and over what timescale. Albeit on a longish timescale, some models predict potentially devastating long-term effects on coastal communities. We may be talking about hundreds of years or perhaps millennia. Nevertheless, it is highly important that we work further on these predictions. About 25 per cent of the land mass in the northern hemisphere is influenced in one form or another by permafrost. The effect of global warming on permafrost is that methane is removed, which increases the global greenhouse effect. Methane is infinitely more dangerous than carbon dioxide, so we need to look at these issues very carefully.
	Even without climate change, the need for another international scientific agenda in the polar regions would be compelling. As we discovered in the previous polar years, we can use the vantage point of the polar regions to study much about our planet. The Earth's inner core, the Earth's magnetic field and geospace are correctly in the draft themes for the International Polar Year, simply because of the previous record. But climate change adds further urgency to the need for this International Polar Year, making the case overwhelming. I hope that we ensure that we are able adequately to play our part, not just for the two years but for longer, in the Antarctic and the Arctic polar regions.

Lord Avebury: My Lords, I join in the thanks which have been expressed to the noble Viscount, Lord Montgomery, for his success in securing this timely debate and for his long involvement in polar issues. I hope that he will ensure that we do not have to wait another 13 years before we can debate the results of the IPY, and that he will get a positive answer from the Minister on the retention of HMS "Endurance".
	In December, an island off the coast of India that used to have 20,000 inhabitants vanished below the waves. It was the first of an increasing number of islands that will disappear as sea levels rise due to global warming—by as much as six metres before 2050 if we accept the figures given by Al Gore in his video, "An Inconvenient Truth". Where I live, just the other side of Camberwell New Road, we should be just above the shoreline, but if there has been a miscalculation and it turns out that sea levels rise by eight instead of six metres, the end of my road will be submerged, together with much of Lambeth and Southwark. Your Lordships can see what will happen in their own areas if they look at the website wwwflood.firetree.net, a great piece of work by Alex Tingle.
	Much of the scientific work of the International Polar Year will focus on climate change, of which the rise in sea levels is only one of the harmful effects. It is one that may become more accurately predictable through atmosphere-ocean general circulation models such as the one being developed by the UK's Hadley Centre, and the Liverpool-based Proudman Oceanographic Laboratory's IPY project to measure Arctic and Antarctic polar coastline sea levels as a contribution to the Global Sea Level Observing System. But we already know that the glaciers which drain the Greenland ice sheet are flowing twice as fast as they did two years ago, and if that sheet were to disappear altogether, sea levels would rise by 7.2 metres. I therefore welcome the noble Viscount's proposal that the British Antarctic Survey's remit should be extended to cover the North Pole as well as the South Pole. The connection between the two was underlined just the other day when it was discovered that the fragmentation of the Larsen B ice sheet was caused by a climatic event off the coast of Iceland. They are very closely connected. The British Antarctic Survey reckons that the west Antarctic ice sheet would not need to thin by very much for the ice to float, and therefore might become capable of rapid deglaciation. That is now a major research priority because if deglaciation were to begin, the present rate of sea level rise of 2 mm a year would accelerate and the total loss of this sheet would result in an average five-metre rise world wide.
	There is UK participation in over 40 per cent of the 228 IPY approved projects, a remarkable testimony to the distinguished contribution being made today by many UK research institutions and universities in the field. The extent of international collaboration in these projects is in accordance with the concluding statement of the Antarctic Treaty meeting in Edinburgh, which said that members would champion,
	"increasing international collaboration and co-ordination of scientific studies within Antarctica".
	But I wonder if the process has gone far enough. Some experts say that there are too many research stations in Antarctica doing work of low calibre, and your Lordships' Science and Technology Select Committee thought that more could be done to ensure that bases communicated more effectively with each other on scientific matters. Some 27 different states have their own facilities—I do not know whether the noble Lord, Lord Jopling, has counted them, but he did refer to this as a matter of concern—and a number of new ones are being built as part of the IPY programme. The Belgians, for instance, whose scientists have been content to work in other nations' bases for the past 40 years, are spending $8.2 million on a new base to accommodate 12 people for part of the year.
	The Government say that they would be extremely supportive of an initiative to avoid duplication or to foster collaboration in science programmes, but they do not believe the Scientific Committee on Antarctic Research should do the job. With nine EU states having their own national bases and a 10th coming on stream, is there perhaps an argument for a common European policy and a common European programme on polar research? Collectively we might be able to match the impressive facilities of the Americans with their new $153 million facility at the South Pole designed to accommodate 150 people and approaching completion during the IPY. It has a 10-metre sub-millimetre wavelength telescope to look at the cosmic microwave background now being installed, and a high-energy neutrino detector employing thousands of photo sensors spread out over a cubic kilometre below the base. If Europe got together, could we undertake projects of that size and complexity, and expand our use of satellite measurements which the BAS says are revolutionising the study of ice sheets? The BAS core budget is around £37 million, compared with a $346 million budget for equipment and logistics alone for fiscal year 2007. Can the noble Lord tell us what is the collective total spend on polar research by the European Union and how it compares with the United States?
	I was disturbed to hear what the noble Earl, Lord Selborne, had to say about the long-term funding of research by the United Kingdom because I think noble Lords will agree that the UK gets excellent value for money from the BAS. Further, since the Stern review suggests that, with a business as usual scenario, climate change would mean an average 20 per cent reduction in standards of living across the world, the Government ought to be asking NERC whether its funding strategy places sufficient weight on the importance of polar science and the work of the BAS in particular. Perhaps we should propose that a hefty charge be made on tourists visiting Antarctica, not only to reduce the numbers which have caused concern because of their environmental effects, but also to help defray the increasing costs of international research projects.

Lord Astor of Hever: My Lords, I thank the noble Viscount, Lord Montgomery, for giving us the opportunity to debate the International Polar Year. I also pay tribute to the noble Viscount and my noble friend Lord Jopling for their hard work to make the Antarctic Act 1994 possible.
	This country has played a major role in the exploration and study of the Antarctic since Captain Cook's expeditions in the 18th century. The recent generous decision by Lady Philippa Scott to give the last letters of Captain Scott to the Scott Research Institute is a timely reminder of one of our most famous explorers. The public interest is a hopeful sign that our nation's history is continuing to inspire interest in one of the most fascinating places on earth. The extreme weather described by those extraordinarily dedicated scientists who braved the Antarctic winter, the amazing geography with both volcanoes and ice sheets, and the unique wildlife, have caught the imagination of people for many years.
	It is thanks to the Antarctic Treaty that future generations will also have the opportunity to marvel at these things. This agreement, that the whole continent should be,
	"a natural reserve, devoted to peace and science",
	has kept the Antarctic free from nuclear testing and military activities, and open to researchers. It was thanks to the success of the International Geophysical Year 1957-58 that this treaty was signed. We hope that the International Polar Year 2007-08 will be equally successful in protecting the Antarctic far into the future. Can the Minister reassure the House that the Government are doing everything possible to increase the number of signatories to this treaty? My noble friend Lord Jopling was concerned about the rise in tourism to the Antarctic, not all of it responsible. The remotest parts of the world are becoming increasingly accessible to more and more people. As different forms of tourism grow and the ways to exploit the world's resources become ever more inventive, it is critical that as many countries as possible are signed up to the treaty and the environment protection protocol. The noble Viscount also raised concerns about HMS "Endurance" which I share. I hope that the Minister will be able to assure noble Lords on this point.
	The expected visit by Princess Anne to the Antarctic this week will be the first by a member of the Royal Family. It will, I hope, serve as a timely reminder of how fragile both the environment and the earliest buildings built there are. The Antarctic Heritage Trust, of which Her Royal Highness is patron, is undertaking sterling work to preserve and restore Scott's discovery hut and belongings. I hope that this visit will encourage the donation of the necessary funds.
	Antarctic research has never been more important or relevant to the rest of the world. As one of the two world regions being affected most by global warming, it is crucial for our understanding of what effect human activity has on the world around us. It was in the Antarctic that scientists were able to study what we were doing to the ozone layer. It is there that we are now able to measure the atmospheric make-up over the last 10,000 years. Even regional changes in Antarctica can make themselves felt across the world, as the collapse of the massive Larsen ice shelf brought home to us in 1995. Antarctica's ice sheets hold enough water to cause a 57 metre rise in sea levels if they were to melt.
	As climate change has a greater political priority, and as we decide on how we will react to the threat of global warming, the extent and accuracy of scientific data is crucial. Research is needed to convince those who continue to have doubts about the necessity for measures such as carbon trading. It is also needed to make sure that our responses are accurately targeted, sufficiently robust and, above all, effective. The Government must tread a fine line between knee-jerk reactions to inaccurate scare-mongering and an ostrich-like refusal to see what must be done. For this, we need credible, non-partisan evidence. I hope the Government will continue to support independent research and take care that public policy is not laid open to the charge that it is based on flawed data.
	My noble friend Lord Selborne mentioned the Antarctic Treaty consultative meeting held in Edinburgh in June. The numerous public events—from lectures and exhibitions to tours of the British Antarctic Survey's ice ship RRS "James Clark Ross"—were fine examples of how the public can be involved in and educated about the work going on. I am sure that the Minister shares our hope that the International Polar Year will raise more public awareness nationwide and around the world. I support the calls for a report of the IPY findings to be presented to the Secretary-General of the United Nations at the end of the year as a way of raising the profile of the IPY and the work it does.
	There is an enormous public appetite for learning about the natural world and science in general. It has been demonstrated recently by events right across the spectrum, varying from a children's animated film based on the dangers of interfering with a species' food supply—highlighted by tap-dancing penguins—to the large number of visitors to the exhibition resulting from the Shell Wildlife Photographer of the Year competition at the Natural History Museum.
	I hope that this will make up for the baffling belief held by the Government that it is possible to turn out world-class scientists from our education system without a solid grounding in science from a young age. One of the most important lessons that the Edinburgh conference teaches us is that science is a multi-discipline area where co-operation between scientists of different stripes is necessary for the most relevant programmes. Our education system should be providing this solid grounding, but I have the gravest fears for our future contribution to science in the face of continuing resistance to giving every child the opportunity of studying all three core sciences at GCSE. It is no surprise that science faculties at universities are closing from a lack of applicants, as fewer and fewer children are given the opportunity of pursuing their interest in these subjects.
	One country can make a difference; the £5 million funding initiative from the Natural Environment Research Council in 2004 provided a catalyst for other countries to make their own contributions to the field. I hope this Government will do everything in their power over the next year to engage as many other states as possible in the International Polar Year. I wish everyone involved great success.

Lord Triesman: My Lords, I join other noble Lords in congratulating the noble Viscount, Lord Montgomery, on securing this debate, which was rightly described as timely. I know well the keen personal interest that he has in Antarctic matters, because he steered the Antarctic Act 1994 through this House, and from his continued attention to the detail. I am pleased that the time has returned for another debate, even if that is after 13 years; let us hope that it is not another 13 years until the next. I am also delighted that the noble Lord, Lord Jopling, who had such a role in another place, has taken part. I thank all noble Lords who have spoken of their interest in the UK's polar work, and for doing so with such enthusiasm. I shall try to deal with all the points raised.
	I start by joining the noble Viscount, Lord Montgomery, in congratulating Dr Mike Richardson, who retired as the FCO's head of polar regions unit in December 2006 after 15 quite remarkable years. We owe him a lot. I also want to say immediately how much I agree with the noble Lord, Lord Avebury. The remarkable contribution of UK exploration and science is vital, and it is critical that we continue it. Aside from the prospect of the noble Lord's house being flooded, your Lordships' House is likely to be flooded as well. These are by no means trivial issues as we look at them.
	I also take the point that the noble Lord, Lord Astor, made about the necessity of continuing in the traditions of the best scientific work. Of course, that means stimulating children to be interested. I draw a little comfort from the fact that, in the scientific world, we are a nation that punches well above its weight as matters stand, if one looks at cited and refereed journals and so on. None the less, there has to be a commitment to keep that going, which I myself feel strongly.
	We are standing at the beginning of International Polar Year 2007-08. The IPY will be an intense, internationally co-ordinated campaign of research to initiate a new era in polar science, and we do have the enthusiasm for it. It marks 50 years since the International Geophysical Year of 1957-58, when international scientific collaboration in Antarctica provided a principal catalyst to the negotiation of the Antarctic Treaty in 1959. The noble Lord, Lord Astor, is quite right to say that the continent has been the subject of huge public interest and fascination through a much longer history than that; I think that he used the word "imagination", which is absolutely the right one.
	Almost 50 years ago, the UK was the first state to ratify the Antarctic Treaty. Fifty years on, the UK remains one of the leaders within the Antarctic Treaty System because of the strength of our commitment and the size of our presence in Antarctica. We are working continually to ensure that others sign up to the treaty obligations as rapidly as possible. The UK was delighted to host for the first time since 1977 the Antarctic Treaty Consultative Meeting in Edinburgh in June last year. The Princess Royal not only showed great support, but did so with great knowledge. That was a real benefit to the conference, which I had the privilege of attending and speaking at.
	Hosting the ATCM gave us the opportunity to showcase the United Kingdom's historical, scientific and political contribution to Antarctica. We were widely congratulated not only on the highly professional organisation of the meeting, but also for using the opportunity to promote Antarctica to the public. The United Kingdom led discussions in Edinburgh on the identification of future priorities in order to ensure the continued protection of the Antarctic environment, to which I will return. We also led the debate about the future management of tourism—another issue I will return to in just a moment—concentrating in particular on whether the treaty parties should seek to place restrictions on the size and number of vessels operating in Antarctica to minimise the risk to the environment.
	The UK has also led the development of new site guidelines for tourist visits to key Antarctic sites, and 12 new such guidelines were adopted in Edinburgh. Our draft guidelines for ballast water exchange in the Antarctic treaty area were also adopted. We launched a new interactive education website—very important for reaching younger people and keeping them interested—which subsequently achieved a Bafta nomination, and a wildlife awareness manual to provide guidance to helicopter operators in Antarctica to minimise disturbance.
	Edinburgh was, as the noble Earl, Lord Selborne, rightly stressed, a success. I was pleased that the FCO played the role that it did, and I pay particular tribute to the British Antarctic Survey, which was fundamental to the success of the conference. Long-term research and continued data collection are vital, and the BAS has an outstanding history.
	In parallel to the meeting we organised a public awareness campaign, "Discover Antarctica", which included lectures, presentations, exhibitions and a visit by HMS "Endurance" and the British Antarctic Survey's Royal Research Ship "James Clark Ross". That public outreach campaign, organised jointly by the FCO and the British Antarctic Survey, recently won the Corporate Communications award for best public service corporate communication. I believe that was an acknowledgment of its success.
	The ATCM was an opportunity to reinforce the UK's ongoing commitment to the provisions of the Antarctic treaty. Almost 50 years on, I believe it has stood the test of time. The International Polar Year is the most significant commitment to polar science since 1957. In order to commemorate and communicate the IPY we have set aside one day of the conference to focus on the IPY's aims and objectives. As a result of that day of presentations and discussions, the Edinburgh declaration on the International Polar Year was adopted. Crucially, that gave a collective intergovernmental commitment by the Antarctic treaty parties to support the objectives of the IPY and to support the scientists taking part. Having driven this process along, the parties, we were delighted to see, were able to respond positively, as has the Arctic Council.
	During the IPY we hope that governance mechanisms of the two polar regions will seek to further enhance collaboration and co-operation, about which I will also say a little more in response to the points made by the noble Lord, Lord Avebury. The UK will play a full and active role in the International Polar Year. I am delighted that the Natural Environment Research Council is hosting and funding the international programme office for the IPY, based at the British Antarctic Survey in Cambridge. I also understand that UK scientists are involved in the development of about half of all IPY activities, as was pointed out in the debate.
	The UK already invests over £50 million every year in our polar science work, primarily in the Antarctic, for reasons of history and politics, as well as of science. I am afraid I cannot give the noble Lord, Lord Avebury, a figure for the EU, although we will see if we can aggregate one. In any case, it is hard to compare with the United States' spending on science, which in every area leaves the rest of the world well behind—unfortunately, in my view.
	We can, however, acknowledge the successes of the past,. The noble Earl, Lord Selborne, mentioned them, as have others, such as the noble Lord, Lord Astor: the discovery of the hole in the ozone layer, and the environmental history book that the Antarctic provides. The importance of the data increases with each year that passes. It is a key barometer of climate change worldwide. As a result of the IPY, the Natural Environment Research Council have also invested an additional £4.9 million in new Arctic international science projects. Thus, we are committed to a leading role in scientific endeavours at both poles.
	The resource budget of the BAS, which this year is £38 million, will be £37.8 million by 2009. The difference is £200,000. There are differences in the capital budget, but, as I understand it, and I will check this, the BAS has also received additional funding to construct a new research station at Halley, which should be operational by 2009-10—not an entirely dire picture.
	That raises the question mentioned by the noble Viscount, Lord Montgomery, whether we should draw it all together in a single institution. I have said how much we invest and that we are one of the world leaders in that investment. International Polar Year highlights the importance of scientific understanding in both polar regions and we are well placed to respond to the challenge—we need to do that as well as we can. I ask noble Lords to consider that we should certainly keep our scientific funding levels at the highest level possible. However, there are different scientific and meteorological issues at each of the poles and it is important that the very best scientists, wherever they are—in United Kingdom, in higher education and research institutions—play their role. They will not all be concentrated in one place, so I do not want to see a system that might blight some research, which is often attached to other parts of research, so that it falls away.
	We cannot underestimate the work of British scientists on the physics, chemistry, geology and biology of the Antarctic, which is vital for the whole planet. That is why the BAS has set the goal of becoming the leading international centre for global science in the Antarctic context by 2012. It is quite right to do so. Already Britain can be justly proud of its input in the polar regions. I have reaffirmed our commitment and I quote my noble friend Lady Symons, who in February 2005 said:
	"We are committed to maintaining the UK's high profile within the Antarctic treaty system and we recognise that securing strong scientific support for policy input into the Antarctic treaty and supporting the British Antarctic Survey to undertake world-class science reinforces the UK's influence and status at Antarctic treaty negotiations".—[Official Report, 3/2/05; col. 475.]
	We are in the same position. The governance of Antarctica is vital for the peaceful co-operation and protection of the continent in every way.
	I shall make a few quick points about the vital issues that have been raised. Antarctica is protected from damaging conflicts arising from sovereignty disputes by the treaty which, since 1961, has put all sovereignty claims south of 60 degrees in abeyance. The treaty system seeks to protect the Antarctic environment through the protocol to the Antarctic treaty and other conventions add to it. I say to my noble and learned friend Lord Archer and to the noble Lord, Lord Jopling, that the minerals convention will not enter force in the foreseeable future, but it has been overtaken by the environmental protocol to the Antarctic treaty which prohibits mineral resource activity other than in scientific research.
	I say to my noble and learned friend Lord Archer that the Antarctic treaty secretariat will be funded. It is not totally funded at the moment but the obligation to do so by an apportionment measure enters into force and will become obligatory to all parties. It is at about the 80 per cent level at the moment. I say to the noble Lord, Lord Avebury, that the treaty and the arrangements made for International Polar Year should ensure far greater scientific co-operation and we hope that that will be enhanced.
	There are no propositions whatever in the current financial planning to reduce the readiness of HMS "Endurance". We are considering "Endurance" for the long-term; like every ship, at some point, it will need to be looked at, but there are no propositions of that kind. I believe that we can have a real impact.
	To the noble Viscount, Lord Montgomery, to my noble and learned friend Lord Archer and to the noble Lord, Lord Jopling, I make the point that we recognise that tourism is very important. It has grown a great deal and it has to be carefully planned and monitored. We have to consider the safety issues, for which "Endurance" is important, We are working hard and we will use International Polar Year to ensure that the regulations that control and support that fragile environment are at the centre of the debate, as they must be. Those concerns about impact are vital.
	I conclude by saying that this country is rightly proud of its polar history. We have sovereign interests and a long-standing interest in Arctic matters which will continue. Scientists will work in those extreme environments and I have no doubt that they will contribute to the global understanding of our planet in a general sense. In my view, having built such great foundations, it would be a tragedy to let them slip. I do not for a moment believe that we have any inclination to do so. The points raised in the debate have focused not just on what has been done but on why that is essential for the future. The Government remain as committed as anyone in the House to ensure that the future of that continent is secure.

Lord Carlile of Berriew: I support the amendment. It has been moved with great cogency by the noble Baroness, Lady Murphy, who cited evidence from the profession. I add nothing to that.
	I remind noble Lords that the Joint Scrutiny Committee recommended, after hearing evidence, that:
	"the Government bring forward legislation ... which would enable people to make advance statements and to record advance decisions, particularly if there is a treatment that they would not wish to receive".
	One or two examples of that have been given by the noble Baroness. The committee also recommended,
	"that the arrangements provide for these statements (in relation to any future mental health treatment) to be taken into account by, but not become binding on, clinicians in determining the provision of medical treatment for mental disorder under the Act".
	I confess to great disappointment that that clear conclusion of the Joint Scrutiny Committee has not been included in the Bill.
	I remind the Committee that, in November 2002, the Joint Committee on Human Rights, in its 25th report, recommended at paragraph 91 that,
	"the right of patients to give directions about their future treatment, during periods when they are capable of doing so, should be respected where doing so would not present a threat of death or serious harm to the patient or anyone else".
	The scrutiny committee also highlighted the first point made by the noble Baroness in moving the amendment: the lack of consistency between the Mental Capacity Act and the Mental Health Act 1983. I look forward with interest to hearing what the Government propose to do, or how they propose to justify that very obvious inconsistency.
	The amendment includes, as proposed new Section 75B(2), three sets of circumstances in which advance decisions or advance statements would not be applicable. Those three sets of circumstances seem to me to provide all necessary protection to clinical judgment and to patients in the sort of circumstances referred to by the noble Baroness. I cannot see any sound reason why the Government should reject this amendment. I hope the Minister will at the least be prepared to consider the matter further.

Lord Hunt of Kings Heath: This has been an interesting debate. I know that the House discussed these issues at length when we considered the Mental Capacity Bill, now the Mental Capacity Act 2005. That Act put advance decisions on a statutory footing and provided for any person to say in advance that they want to refuse treatment if they lose capacity to make such decisions in the future. A valid and applicable advance decision to refuse treatment has the same force as one made by a person with capacity and must be followed.
	The Mental Capacity Act provides that these advance decisions do not apply where the person is subject to Part 4 of the Mental Health Act, nor the new Part 4(A) provided for in the Bill. That is because the Mental Health Act provides for circumstances in which a patient with a mental disorder can be treated without consent in order to protect themselves or others. Of course we believe in the importance of taking account of a patient's wishes as fully as possible, including those expressed in advance. I assure the House that we will give guidance to practitioners in the code of practice on giving those views due consideration whenever decisions about the care and treatment of the patient are made. I have noted the comments of the noble Baroness, Lady Barker, about the code of practice. I will look into those matters and come back to her.
	It is in the nature of this legislation that compulsion is provided for, precisely because the patient may not wish to have the treatment that he needs. Clearly, compulsion is no light matter. We have many safeguards in place. Good clinical practice demands, wherever possible, that treatment is provided under this Act with the consent of and in accordance with the wishes of the patient. Clearly, the more that a patient is engaged with and contributes to the process by which decisions are made, the better are the outcomes for him.
	Briefly, I shall outline a number of scenarios in which we do not think that the amendment would work, but where we believe that professionals should consider past expressed wishes. A past wish is not always relevant only where the patient has lost capacity, but it is not clear in the amendment that it is intended that an advance decision is only ever applicable where the patient lacks capacity. A patient may choose not to discuss a matter with a mental health professional for a variety of reasons, or it may not be appropriate to have a discussion when it is needed. For example, the patient may be particularly agitated and discussing the type of treatment that they urgently need may only increase their agitation in a way that the professional judges unacceptable.
	In managing that situation, we would want professionals to consider what they know about the patient's views and any relevant past discussions that they have had. That is good practice. We think that that is best addressed in guidance. We do not want professionals to consider that they need only take patient's past views into account where they now lack capacity.
	Even when professionals are having contemporaneous discussions with a patient, we would expect them also to consider what the patient had said or written in the past and raise that in their consultation as appropriate. A patient may appreciate being reminded of what they have said in the past—or indeed what had happened in the past, such as a particular response to a treatment—when considering what they want to happen in future. Where a decision is made that is contrary to the wishes of the patient, we would expect it to be recorded—whether it was not in accordance with the patient's wishes as expressed at the time or, where no such consultation could take place, if it went against the patient's past expressed views. We consider that good practice
	We all agree that advance wishes are important in determining the best treatment for a patient, stressing that importance in guidance, but the amendment is not the right way to do that. There are legitimate reasons why the advance decisions in the Mental Capacity Act do not apply where the person is subject to Part 4 of the Mental Health Act. The circumstances under the Mental Health Act in which a patient with a mental disorder can be treated without consent to protect them or others form a very distinct set of circumstances.

Lord Patel of Bradford: In moving this amendment, I shall speak also to Amendments Nos. 42 and 46. These three amendments are grouped because they each concern care planning. Amendment No. 22 seeks to provide a clear definition of what constitutes a care plan because it is not presently referred to in statute. This is necessary to ensure it is clear. Amendments Nos. 42 and 46 are intended to strengthen the statutory duty for the use of care planning both for community treatment orders, if the Chamber approves that provision, and for all detained patients, not just following discharge but from the outset of the order or section.
	I intend to speak to the main intent behind these amendments rather than address each in turn, and should make clear that in common usage a care programme approach, or CPA as it is known, is the term used to describe care planning. CPA is the process that should produce a care plan, but the purpose of these amendments is to make care planning itself statutory.
	As well as being chairman of the Mental Health Act Commission, I have also had a range of roles over many years in the areas of mental health and black and minority ethnic communities. I am not talking about minority ethnic communities today, although they will be among some of the main beneficiaries of these amendments. I am talking about the main practice standards.
	Care planning is a fundamental component of good mental health care. I am sure your Lordships will agree that good practice dictates that all detained patients should have a care plan as a reciprocal requirement of detention. The care programme approach, developed and promoted by the Department of Health, is the basis of effective care planning. As the noble Earl, Lord Howe, said in his eloquent speech on the first day of Second Reading, on the principles that should underpin a modern Mental Health Act,
	"service users should be involved with their own assessment and care".—[Official Report, 8/1/07; cols. 13-14.]
	One would think that that was a simple enough requirement.
	One of the stated intentions of the Bill's drafters is not only that patients should be subject to compulsion under the Act if there is appropriate medical treatment available to meet their assessed needs, but also that the CPA should ensure this takes place routinely, that appropriate treatment is available and that a care plan is drawn up for each patient as soon as possible after admission that informs their continuing care while in hospital and after their discharge.
	Unfortunately, despite the Government's intentions, there remain serious problems in providing patients with robust and appropriate care plans. Quite frankly, it is not happening nearly well enough. Recent research evidence, for example the 2005 report "Back on Track" by the Mental Health Act Commission and the Sainsbury Centre for Mental Health, demonstrates that implementation of the CPA nationally is at best patchy. Many patients do not have a care plan, or, if a care plan is available in the patient's record, it is not followed.
	It is a significant matter for public concern that, although the CPA has been in existence since 1990, care planning is not at present done well. This directly results in the severest of consequences, such as suicide and homicide. Most worryingly, National Confidential Inquiry into Suicide and Homicide by People with Mental Illness, published only last month, found that 71 per cent of preventable homicides and 45 per cent of preventable suicides were by patients who were not subject to appropriate CPA plans. This is despite clear evidence of severe mental illness, previous violence, self-harm or admission under the Mental Health Act. The report emphasised the importance of ensuring that CPA is properly used for high-risk groups.
	Many homicide inquiry reports have found similar evidence of incomplete or ineffective implementation of CPA leading to the most severe outcomes. An example from one of the most recent of these is the MN inquiry. MN stabbed and killed an elderly woman he did not know in her own home. The report concludes that the lack of CPA for MN was a contributory factor to the death of this elderly woman. It concludes,
	"even though MN was subject to s3 and on s17 leave this did not ensure he received care according to the basic standards of CPA".
	Indeed, it stated:
	"The impact of CPA on MN's care was virtually nil".
	The inquiry report adds:
	"It is expected that the Government will introduce compulsory ... treatment in the community, through amended ... legislation. We cannot emphasise too strongly that this must be backed up by an effective framework for community care".
	Where a tribunal hears any application concerning a patient,
	"this must, in our opinion, include a review or at least a consideration of their CPA care plans".
	Similarly, the inquiry into the John Barrett case, published in late 2006, shows once again the need for good risk assessment and properly drawn up and implemented care plans in managing potentially violent or disturbed patients. Gillian Downham, barrister and the chairman of several of the homicide inquiries, including the inquiry into the MN case, was concerned enough about the repeated failings of CPA to commission an examination of CPA nationally. That was followed by a seminar that I chaired and which involved some of the leading people in the health, social care and legal professions to advise on the future of CPA. This resulted in specific national recommendations for strengthening CPA care planning, and what better way in which to do that than by making it a statutory responsibility?
	Recommendations from the full range of inquiries have consistently included calls for practice to be driven by care planning and review. Most of these reports stress the importance of fully involving patients, service users and carers in care planning, and that this should include adequate risk assessment so that care planning can contribute to the prevention of incidents and ensure patient and public safety. In the Mental Health Act Commission's most recent biennial report, which is to be laid before this House, we wrote:
	"Patients' care plans under the Care Programme Approach are supposed to anticipate crises, and should take account of patients' preferences in interventions. If care plans can specify actions on the part of the patient or services that will intervene in the early stages of any crisis and possibly avert it, the need to override the patient's choices through compulsory admission may be avoided altogether".
	Of course, one of the most significant drivers for the Bill has been many people's concern about public safety. In essence, this means the assessment and management of risk to ensure that people receive the best possible care and treatment. I would be the first to argue that the Mental Health Act should be concerned predominantly with patient care, and I, along with many others in this House, remain concerned to ensure the right balance between the objectives of patient care and public safety. I strongly argue that care planning is central to achieving that balance.
	Good patient care based on care planning requires that clinicians follow a robust process of assessment and review, with appropriate treatment, care and support identified for the patient, especially on discharge. Care planning, however, does not define a specific intervention or set of interventions; it is a process, and as such it lends itself well to statutory regulation. And although the clear benefit for patients and the public that would result should be enough on its own to recommend these amendments, it would also underpin the community treatment order if the House approves that part of the Bill. Moreover, tribunals would be in a position to check the existence of care plans, ensuring that patients subject to the Mental Health Act in the community are being provided with a service and thus reassuring the public of their safety.
	The Department of Health has recently issued a consultation document on ways of improving CPA. The current proposals are unlikely to deal with what appears to be one of the main problems: the unwillingness, whether intentional or not, of some services and clinicians to give care planning the importance it deserves. One improvement must be to encourage greater clinical involvement, but I am forced to draw the conclusion, based on the evidence and the continuing spate of inquiries into homicides and suicides that I have highlighted, that effective implementation will be achieved only by giving the process statutory force and by ensuring that good practice is adhered to. After 16 years of Department of Health CPA guidance and guidelines, I also firmly believe this is now the only way in which compliance with CPA can be achieved.
	As I have already stated, I would be the first to argue that the Mental Health Act should be concerned predominantly with providing the best possible care for the patient, and we in this House are right to be concerned that some of the provisions of the Bill may not have achieved the correct balance between the objectives of patient care and public safety. Yet a very straightforward opportunity to tighten up the present system has been missed. These amendments would provide a straightforward opportunity to address this. Making care planning a statutory requirement would improve care for patients, ensure the safety of patients, and contribute significantly to improving wider public safety. I beg to move.

Earl Howe: The noble Lord, Lord Patel of Bradford, has very ably articulated the case for the principle of reciprocity and I support all that he said. One could put his case a slightly different way by saying that just because patients are subject to compulsion, they should not have to put up with poor services. By including a measure that places care planning for detained patients on a statutory footing, I believe that the Government could send a clear signal to patients and mental health professionals that this Bill is not just about coercing people into treatment; it is also about ensuring that necessary psychiatric coercion will be effective and will help a patient to regain and retain the freedoms that need to be temporarily taken away.
	The proposed amendment is designed to provide some reciprocal benefit to people subject to compulsory powers. Of course, this does not amount to a guarantee of specific treatment, irrespective of available resources; rather, just as with the current statutory requirements for after-care planning under Section 117, it would require services to assess requirements and then meet them to the best of their ability. The sanction against services that failed to do this would be the ability, but not the duty, of the tribunal to discharge a patient from detention where a care plan is not being implemented. Effective care planning is also key to ensuring patient involvement and encouraging the exercise of patient choice, even if this is within the limited parameters of coercion. There is good and bad practice in this area. There are hospitals where care planning for detained patients is rudimentary at best, so a statutory duty of care planning would be a marvellous lever for use by monitoring bodies, such as the Mental Health Act Commission, as well as patients themselves and their advocates, to ensure that the failing services prioritise this aspect of mental health care.
	The noble Lord, Lord Patel, rightly mentioned the MN case, which shows that care planning is not only about the quality of service to the patient; it can also be an important factor in the safety of the public. Although the specific consequences of the failings in the care programme approach were extreme in that instance, we need to bear in mind that the Mental Health Act Commission regularly finds inadequate CPA procedures for detained patients.
	Finally, as I mentioned, under Section 117, there is a statutory requirement for after-care planning of patients who are detained under compulsory powers. Despite the understandable emphasis that the noble Lord, Lord Patel, places on the care which a patient receives on discharge from hospital, it is an irony of the current law that a statutory duty to provide such care, as is assessed to be appropriate under a care plan, takes effect only when the patient ceases to be detained. Amendment No. 46 seeks to extend that statutory duty to the period when the detention is in effect. I cannot help feeling that this would be an ideal lever to enable the Government's policy in relation to the care programme approach to be better achieved.

Baroness Barker: I added my name to this amendment for a particular reason. The Joint Scrutiny Committee was regularly presented with very powerful evidence from users on just how little care plans are implemented. I remember one witness talking powerfully about the number of people detained on wards who did not have their care plans implemented and the sheer frustration, and boredom, that that gave rise to on their part, as well as frustration for staff. Many witnesses supported the idea that the care plan approach should be put on a statutory basis, but the Joint Scrutiny Committee did not agree. We disagreed because we thought that it perhaps ought to be left as a matter of practice, which would be easier to change.
	However, the Joint Scrutiny Committee made two recommendations. It recommended that,
	"the Bill include a requirement on tribunals, when they are examining care plans, to consider wider concerns and considerations than purely medical matters—for example, social and housing needs".
	That is not in the Bill; it is buried deep within the code of practice, so deep that I doubt that it would emerge to see the light of day. The committee went on to
	"recommend that the codes of practice contain guiding principles for drawing up care plans which will govern the treatment and, for example, the privacy, safety and dignity of the patient".
	At the very end of the code of practice there is a simple restatement of the law on data sharing, but nothing that would amount to a statement of principles about privacy, dignity and security. What has been included in the code of practice falls so far short of what was recommended by the Joint Scrutiny Committee that it is unlikely that it would make a great deal of difference in practice. Therefore I support the noble Lord, Lord Patel of Bradford, in his attempt to highlight this issue from another angle. Much of what he said underlines not just treatment for those who present no problem whatever, but for those patients who the Government have said all along they are concerned about, those who may become dangerous and violent. That is because a lack of implementation of care planning has often led to a build-up of tension in such patients which manifests itself in violence. That is why I have added my name to this amendment.

Baroness Royall of Blaisdon: I am grateful to your Lordships for raising this important subject. As noble Lords have said, it is of the utmost importance to ensure that care planning is robustly and consistently undertaken for every SCT patient, while ensuring that every patient detained in hospital has a well thought through and comprehensive programme of care and treatment. A programme tailored to their individual needs is integral to achieving successful treatment of their condition, whether as an inpatient or a patient in the community.
	I agree entirely with the noble Lord, Lord Patel of Bradford, that the care programme approach must underpin supervised community treatment, and that it is a fundamental part of care planning. It should and will do that, but I do not agree that giving statutory force to the care planning process, as proposed by the amendment, is the best way to achieve that. Indeed, giving the CPA statutory force would require legislation to be so widely drafted as to be meaningless.
	The draft illustrative code of practice that we have published sets out the process through which practitioners should work in preparing a patient's discharge from hospital on to SCT, and recommends that the CPA is worked through for every patient. It makes clear, among other things, that the patient—and, where appropriate, their nearest relative and carers—should be closely involved in the care planning process. Officials in the Welsh Assembly Government have indicated that the code of practice for Wales will cover similar matters.
	I heard what the noble Baroness, Lady Barker, said about the code of practice. I raised those very issues with officials this morning, as it is not clear and not adequate at the moment. Yet we must remember that the code of practice is itself up for consultation, so this is a good opportunity for the noble Baroness and other noble Lords concerned about the issue to discuss with officials how the code of practice can be improved by taking their concerns into consideration.
	I entirely understand the concern expressed by the noble Lord, Lord Patel, that the CPA is sometimes not consistently applied—for every patient, that is—as that can have serious outcomes. However, I do not believe that creating a statutory care planning process is the best way to achieve improvement. It would add little to the quality of application in care planning, which, as my noble friend suggested, is the real issue here. The Government are reviewing CPA in England to look at how patients with the highest needs—as those cases highlighted in the MN review and other enquiries mentioned—can best be targeted. The review will aim to streamline the current care planning process and give patients more control over their care and treatment. Consultation is under way and due for completion in February.
	Similarly, in Wales, the Assembly Government have reviewed the operation of CPA and recently issued a report with recommendations to service commissioners and providers in Wales. The implementation of these reviews, not statutory requirements, will improve care planning for the patient group.
	The care programme approach has been developed to ensure that all people involved in supporting and caring for the patient, be they friends and family, providers of a specialist mental health service—and I note the noble Lord's point about the need for clinical involvement—community care services, housing and other services are co-ordinated to ensure that all the patient's needs are met. In so doing the approach ensures that every need of the patient is identified and that there are no gaps, duplication or even situations where different services are working at cross-purposes with the patient. Of course, implementation is the key; we have to ensure that the code of practice is correctly applied.
	It is right and proper that planning for community services—and, in some cases, the provision of some of these services—should not stop when a patient goes into hospital, as the noble Earl, Lord Howe, said. Indeed, when the patient goes into hospital, that provides an opportune time to reflect on how well the care plan has been working, to thoroughly review it and to plan how it should be changed when the patient is discharged.
	The amendment has the potential to create confusion and unnecessary bureaucracy. We need to keep some flexibility for the in-patient services to assess and provide for the care and treatment of patients in hospital as part of the care planning process. In-patient staff are already involved in the care programme approach planning process, and, as part of their own assessments and service provision, they will consider the services and treatment the patient may have received prior to being detained in hospital. The treatment plan is an integral part of the care programme approach; however, the amendment risks providing for it to replace an existing CPA.
	The quality of care programming is measured in patient experience, and we believe that this would not be best set out in legislation. The best way to improve quality is through the current review and its effective implementation, and through the code of practice. I therefore ask noble Lords to reconsider the amendments.

Baroness Royall of Blaisdon: Amendment No. 24, in conjunction with Amendment No. 23, would remove subsections (3) to (7) of Section 12 of the Act and replace them with a regulation-making power. Section 12 concerns the two medical recommendations that must accompany an application for a patient's admission under the Act. An application for admission is made by an approved social worker. Subsections (3) to (7) of Section 12 set out circumstances in which a doctor may or may not provide one of the two medical recommendations that accompany the AMHP's application for a patient's admission. For example, the two medical recommendations may not be provided by two doctors from the same hospital, except in certain specified circumstances.
	The amendment would replace these provisions with the power to make regulations saying when a doctor may not provide the medical recommendation accompanying the application and when an approved mental health professional may not make the application. In particular, the amendment would allow the regulations to specify when a doctor or an AMHP may not act due to a conflict of interest, when they must have had professional involvement with the patient and when they must not, and when these requirements may be relaxed if they would result in delay involving risk to the patient or others.
	We acknowledge that, if we were conducting a complete overhaul and replacement of the Act, there might be many matters of detail, such as these, that we would wish to adjust. But as the Committee will know, we have deliberately moved away from a comprehensive replacement of the Act to one which concentrates on the most significant and necessary amendments. We are reluctant, therefore, to make changes that fall into the category of desirable but rather less than essential.
	This is a matter not just of the drafting of the Bill but also of its implementation, which will inevitably require considerable effort, especially if we are to bring it into force expeditiously. It will also require practitioners and others to learn and to become familiar with new rules and practices. Naturally, we are keen to focus their efforts and those of the department on key changes. However, I have heard the arguments made. We recognise that subsections (3) to (7) of Section 12 are complex provisions and that placing them in secondary legislation would allow more flexibility to ensure provision keeps pace with changes in practice over time. Given that, I would be happy to take the amendment away and consider whether it would be appropriate to come back to your Lordships with proposals that take account of these issues.

Baroness Barker: One of the many joys of being a member of the Joint Committee was to watch my noble friend Lord Carlile as he chaired a very disparate and feisty bunch of people. He took them, in a masterful way, through some extremely complex issues and he brought before us a range of witnesses all of whom held passionate views and were very expert. He nearly managed the impossible. He produced a very good report but it was nearly a unanimous report. There was one exception. On one vote, two members of the Committee—myself and David Hinchliffe, the then chair of the Health Select Committee in another place—took a dissenting view as regards keeping the distinctions for social workers as opposed to health professionals.
	We did so for two reasons. One was that we believed that it was important that the distinct traditions of social work, as opposed to the disciplines of health, formed an additional and sometimes second opinion in the health and social care treatment of an individual. The other reason was that, because we come from social care backgrounds, we appreciated the importance of the involvement of people from different organisations. Different organisations have different cultures, practices and policies. We saw the importance of maintaining those two different perspectives on decisions about the health and social care of people with mental health problems.
	It is for that reason that I have been happy to put my name to this amendment. The Bill allows the Secretary of State to give directions to local authorities about the making of appropriate contractual and management arrangements for approved mental health professionals. AMHPs—I have not quite got the acronym slipping off the tongue, as they are not yet established—unlike approved social workers, need not be employees of a local authority. They could be free agents; they could come from voluntary organisations. That may be a good and advisable thing. All that is necessary is that there should be directions on their training and approval. Thereafter all the operational arrangements about these subcontractors are left open, therefore they could be employees or have a contractual agreement with the health trust. In my view—and I imagine it would be the view of Mr Hinchliffe were he still a Member of Parliament—that does not maintain the necessary distance from the decision-making of the health trust which would be responsible for a person's treatment.
	For that reason—it is not an unfounded reason, given the overall move towards joint health and social care bodies—there could be an important safeguard for patients where somebody from a distinctly different organisation comes in and on occasion can see something that is blindingly obvious but that had been completely overlooked by people working in the particular culture of health. I hope the Government may address this point, perhaps not by means of my amendment but by tweaking the Bill, just to ensure that that small but important safeguard is there, particularly where people's social care needs are met in the community. I beg to move.

Baroness Walmsley: My response to the issue of consent is that it is nonsense that a young person who is deemed competent to decide to accept treatment could be overruled by his parents if he refuses. That is a legal contradiction. If he can decide to accept treatment that they do not want him to have, surely the corollary is that he must be able to decide to refuse treatment that they do want him to have.
	I understand that the Government also take that view, for which I applaud them, but they believe that the matter is already taken care of by amendments to existing law and by case law. As other noble Lords have done, I emphasise two things: first, the law is still not clear on the matter; secondly, practitioners in the field are certainly not clear on the matter. Young Minds has plenty of evidence that practitioners are still accepting the view of the parents above the view of the young person. Without an independent advocate—a matter to which we will come later by virtue of the amendment tabled by the noble Baroness, Lady Howe—a young person in that situation is in no position to insist on his rights. Indeed, he can hardly be expected to know what his rights are, if practitioners do not know either and if the law is unclear.
	The intention of those of us who support the amendment is to make the law clear for everyone's sake, and, indeed, to back what the Government want and to try to facilitate that. As I understand it, the definitive legal opinion on the matter comes from a judgment of Lord Donaldson, in Re W (A Minor) Medical Treatment 1992. He said:
	"No minor of whatever age has power by refusing consent to treatment to override a consent by someone who has parental responsibility for the minor".
	That is pretty clear, no matter how much such a refusal is taken into account in making clinical judgments. Therefore, it needs putting right.
	Young people themselves and practitioners in the field need to be clear about their rights in this matter. The Government may feel that they can rely on case law for this, but that is clearly not working out there in the hospitals. They need to do something more to clarify the law as they and we want to see it and to make a clear statement that can be understood by everyone. Accepting the amendment would be that statement. It would also give the young person the protections of the Mental Health Act. I hope that the Minister will find himself in a position to do so.

Lord Williamson of Horton: These are important amendments in relation to children and young people and they are what I would describe as "make improvements now" amendments. They are directed not at what the Government have proposed but at improvements that we would like to see now, because this Bill is before us. They are important in particular for young persons of 16 to 17 years of age. As we all know, many mental health problems, such as schizophrenia, occur for the first time often at that age—and it is important that they should be put in the best possible situation at that age.
	The motivation for the amendment is that we do not find in the legislation or draft legislation a sufficient differentiation of the care of children and young people from the care of adult patients. It is not at all a theoretical point. There are a good number of young people in adult mental wards. YoungMinds calculates that of almost 1,000 young people admitted to adult wards, the average length of stay was more than a month, and that in the three years to 2001 about 62 per cent of all under 18s admitted under the Mental Health Act went into adult wards.
	We do not complain about how adult mental wards are administered. We think that a great deal of good work is done there, but we claim that the cases should be specially assessed and that an age-appropriate setting is found.
	I am sure that the Minister is a little fed up with hearing about the Scottish legislation, but he has to; it is part of the lesson that we have to put across in this Chamber. The provision comes under Section 23 of the Mental Health (Care and Treatment) (Scotland) Act where accommodation sufficient for the particular needs of the child or young person is referred to. I am sure that the noble Lord, Lord Carlile, will not wish me to pass over the Joint Committee on the Bill, which recommended that a person of the kind referred to in this amendment should be within the Bill, and, specifically, that the Bill should stipulate that under 18 year-olds should be accommodated in age-appropriate facilities. There you have it.
	Finally, I think that the Children's Commissioner has put an embargo of Tuesday morning on the report he is just about to publish—a huge report—on this specific subject. Of course he must have expected that we would go on with our debate into Tuesday, and he was not far off the mark. But I believe that we are able just to refer to its existence. It is a substantial report. I do not know whether the Minister has read it yet. I have read it. It is an important report, which deals with the appropriateness, or not, of admitting children and young persons to adult wards. It has substantial information from individuals who have given evidence to the Children's Commissioner. The report will certainly influence the debate, whatever is decided here in the next 10 minutes. I draw the Committee's attention to it. It goes very strongly along the lines advanced by the noble Earl in this amendment, which I support strongly, and I hope that we can arrive in due course at a satisfactory solution on it.

Baroness Howells of St Davids: My amendment has been linked to Amendment No. 27. It is intended to ensure that children and young people under 18 receive services that meet their needs. I am obliged to all noble Lords who have spoken so eloquently, laying a foundation of appreciation in this Committee that children under the age of 18 should not be treated as though they were adults. Also listening to the debate is Kathryn Pugh, who comes from YoungMinds. She has been most supportive in drafting the amendment. I am sure that noble Lords would join me in expecting Government, practitioners and parents to be united in ensuring that children get the best possible care to meet their needs.
	Can we assume that primary care trusts will not hesitate to follow the code of practice and implement the guidance for independent advocacy immediately? National Standards for the Provision of Children's Advocacy Services was published in 2002, informed by Article 12 of the UN Convention of Human Rights and the Human Rights Act 1998. As a result, we would expect that all young people now had access to the services detailed in this excellent document. Sadly, it is not the case.
	As the Committee discussed during the debate on principles, the establishment of guidance is no guarantee that what the Government regard as good practice will take place. We are all aware that financial pressures on national health trusts may prevent them purchasing services such as advocacy that are seen as a luxury rather than a basic right.
	We owe it to our young people to afford them independent advocacy. It provides a safeguard against the improper use of powers to detain or to treat them. With an advocate present, a young person can be sure that someone independent of their parents, carers or clinicians will communicate their interests and ensure their right of appeal. We know that in a culturally mixed society not everyone is aware of his or her own rights under the law. In the amendment that clarifies the right of 16 and 17 year-olds to refuse treatment and not have that refusal overridden by their parents, we heard that despite guidance and case law, professionals responsible for treating young people are confused as to who or what should be permitted. How can we then expect a 14, 15, 16 or 17 year-old to understand what treatment under compulsion means for them, and to know their rights?
	I illustrate this with the story of a young Asian girl, whom I will call S. She is 17, lives with her parents and was very depressed. She had self-harmed and taken overdoses, and was in regular contact with services. In one of her visits to mental health services, S talked about wanting to die. When asked if she was going to do anything to make this happen, she said she would if she got the opportunity. Due to concerns for her safety, she was admitted to hospital on a voluntary basis. This was a very daunting experience, as previously S had spent little time away from home.
	S was admitted to an adult ward and was in a room with more than one adult, where a fellow patient threatened her. Although she found the environment intimidating and wanted to go home, it was recommended that she stay in hospital to be monitored. Staff did not understand the cultural difficulties she had on the ward, nor her difficulties in sharing a room, the inaccessibility of somewhere safe to pray and the lack of understanding of her dietary requirements. She was told that if she tried to leave she would be placed under section. S felt that nobody was explaining what this meant to her and that she continued to be in an unfamiliar environment with no, or little, support. She felt uncomfortable around certain members of staff, one even asking her if she felt it fair to put her parents through this.
	A culturally competent advocate could have helped to improve the therapeutic alliance and helped staff to understand the importance of following her religious beliefs and of being in a private room. Her parents themselves would have been reassured to know that S had someone to whom she could relate, who both understood the system and was in her corner. Feeling more in control of the situation may have prevented S from disengaging with services and meant that in the long term she continued to ask for help before she was in crisis.
	We have heard from other noble Lords about the over-representation of black and minority-ethnic patients on in-patient wards and under compulsion. I echo the remarks of those who have commented on the fear of many in the black community that reaching out to mental health services will mean being sectioned. I am positive that giving people the right to independent advocacy will go some way towards reassuring young people, their families and communities that their voices will be heard and their rights protected. I hope that this reassurance will help young people to seek help earlier before they reach a crisis, and that it may therefore even help to prevent admission.
	It is ironic that the Mental Capacity Act 2005 enshrines a right to advocacy for people lacking capacity through the Independent Mental Capacity Advocacy Service, which is due to be implemented in April 2007. It is unacceptable for some patients who lack capacity to be awarded a statutory right to an advocate, while those who lack capacity and who are detained for their mental disorder do not have a similar statutory right to one. It is even more ironic when we consider that the Adoption and Children Act 2002 gives the right to advocacy to young people who are looked after by the state. Yet we do not guarantee young people with a mental health problem the right to such a service, despite their vulnerability.
	The number we are talking about is small; according to the Mental Health Act Commission, it is about 260 young people a year, although we cannot estimate the number of young people who, as in the example I have just given, are threatened with detention and comply through fear. I and many others have welcomed the Government's excellent policies to improve mental health services for children and young people, and I ask that the Government and this Committee regard the amendment as being within the spirit of the National Service Framework for Children and Every Child Matters and accept it as a logical and necessary addition to the 1983 Act. I beg to move.

Lord Carlile of Berriew: I apologise for speaking and thereby lengthening the debate at this stage of the evening, but in my view these amendments are among the most important to this Bill. They are consistent with the views of the joint scrutiny committee. It was our view that it was self-evident, as well as being a matter of evidence, that young people should be in age-appropriate facilities and that they should have doctors who are experienced in treating young people.
	I want to reflect for a moment on my very close observations some 10 years ago of a young girl who went into a hospital suffering from serious depression and anorexia. On the advice of a reputable consultant—this was not in the countryside, but in London—she was sent to an adult unit. There she was treated heavily with drugs. After about four months, and as a result of parental demands made by parents who in the early stages were completely ignorant of the mental health sector, she was moved in a stupefied state to the adolescent unit at the Bethlem hospital, part of the Maudsley hospital. Some time later, the consultant who had professed expertise in treating that girl, though not a specialist CAMHS doctor, was suspended by the General Medical Council for sexual impropriety with a young female adult patient. The life of that girl was saved in the CAMHS unit at the Bethlem hospital because she was treated in an age-appropriate environment by highly specialist consultants with enormous skills. She emerged from that unit to receive outpatient treatment, and was given the early stages of that by a CAMHS specialist consultant. Unfortunately, he too was disciplined at a later stage by the General Medical Council for inappropriate sexual conduct—in this case, toward young female patients.
	I can, if necessary, provide every detail of that story, having observed it at the closest quarters possible. It shows how dangerous it can be for anything other than the closest scrutiny—at an age-appropriate and place-appropriate level—to be put upon every single case involving a child. In many cases, teenagers who face the kind of situation I described are mature in some ways, but extremely immature in others. It emphasises the importance of them having age-appropriate treatment in all respects. The noble Lord, Lord Patel of Bradford, gave us a helpful catalogue in summary form—I am sure that it could have lasted for volumes, or hours—of other cases bearing out the example that I observed at such close quarters and was describing.
	I would be completely content if, 10 years after the events I describe, having made my observations, I could sense any comfort or feel that things have improved as a result of what people who scrutinise these matters daily—like the noble Lord, Lord Patel, or Sir Albert Aynsley-Green, the Children's Commissioner—may say. I see absolutely no evidence of that improvement.
	If we are serious as legislators in the lip-service that we give to having the interests of adolescent, mentally ill children at heart then we have to do something about it. The one thing we could do is to place a statutory obligation on the services—not just targets, but statutory obligations—about dealing with children in settings and with medical care that are both age-appropriate. Of course, there will be emergency circumstances. The Joint Scrutiny Committee dealt clearly with that by providing a solution to emergency circumstances. For example, if a child in rural mid-Wales becomes acutely mentally ill, it may take a day or two to put them in a suitable hospital environment. But surely, that it should take more than a day or two could never be justified.
	I shall be extremely disappointed if we have nothing more than an anodyne response on this issue. The power of this debate has been strong, and there has been unanimity around the Chamber, which, as I said, confirmed that of the joint scrutiny committee. I hope that we shall hear a positive response.

Lord Hunt of Kings Heath: That is not what I am saying at all. Essentially, the Mental Health Act is concerned, as it ought to be, with the legal processes around mental health, mental disorder, compulsion and treatment. It is much more difficult to move on from there to specifying services to be provided to a certain group. That is inconsistent with the way we develop legislation in relation to the health service and to the responsibilities of the National Health Service to provide certain services. Noble Lords can shake their heads, but simply specifying that in this case there is an absolute statutory provision that must be provided by the NHS, come hither nor tither, has clear practical consequences. That is why we believe that the approach of developing and improving services, using the code of practice to influence the way those services are developed, has to be the right way through.
	I assure noble Lords that the further improvement of CAMH services is one of our priorities. It features in the public service agreement for the Department of Health. We are working towards the achievement of comprehensive CAMHS in every area of the country by the end of 2006, and wish to see it maintained thereafter. CAMHS regional development workers continue to assess both the NHS and local authorities in meeting those challenges. The commitment to improve CAMHS is backed up by significant additional funding—approximately £300 million in the years 2003-04 to 2005-06, payable to local authorities in the form of a CAMHS grant, and direct to primary care trusts.
	We have made further additional funds available: £134 million in 2006-07 to the NHS and local authorities for the development of CAMHS. The children's national service framework, the CAMHS standard, gives guidance on what is to be expected in a comprehensive CAMH. It states:
	"All children and young people, from birth to their eighteenth birthday, who have mental health problems and disorders have access to timely, integrated, high quality, multi-disciplinary mental health services to ensure effective assessment, treatment and support, for them",
	their parents or carers, and other family members. I could go on.
	Considerable progress has already been made in bringing CAMHS out from under the shadow of adult mental health. CAMHS now has a profile and a priority of its own. Benchmarking surveys of provision have been completed. There is a strong feeling that central investment has led to a major change on the ground, facilitating a significant increase in multi-disciplinary and joint working across professions. My understanding, from a CAMHS mapping exercise, is that between October 2005 and February 2006 the number of CAMHS teams increased by 16 per cent over 2003, staff by 11 per cent compared with 2004 and new cases seen increased by 12 per cent over 2004.
	The amendment seeks to enshrine what is already good practice. We know it is not perfect. We know there is a long way to go, but improvements are taking place and will continue to take place. Of course, we want to eliminate the use of adult psychiatric wards for adolescents, except where more mature, independent adolescents prefer to be admitted to a ward specialising in treating young adults. That was communicated to the service in a DH/DfES report. We began collecting detailed information about the use of adult psychiatric wards for children and adolescents in April 2005 to allow performance management of that aspect of the service. The draft revised code of practice states that where possible children and young people admitted to hospital should be accommodated with others of their own age group in children's wards or adolescent units, separate from adults, and with access to CAMHS. That is an issue that should be tackled through guidance and monitoring, rather than through legislation.
	As I have said, there is much more to do, but at least we are now building on a foundation of concerted improvements and investments that have taken place in the past three years. I sympathise with all the points made about defects in the current service, but I am absolutely convinced that the way forward is to build on current good practice through the normal processes of the NHS and local government.
	I turn briefly to the comments of my noble friend Lady Howells on Amendment No. 41. She certainly made a powerful case. We are considering how we can make advocacy more widely available. The draft code has much to offer in that area. I can assure my noble friend that I am giving this matter every consideration, but I suggest that we might return to the subject when we debate Amendments Nos. 38 and 39.